untitled

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The Great Replacement:

White Supremacy as Terrorism?

Khaled A. Beydoun

and Nura A. Sediqe

BSTRACT

The events of January 6th 2021, and the era of emboldened armed white

supremacist violence that surrounded the United States Capitol attack spurred

state commitment to counter “white supremacist terrorism.” This unprecedented

shift on the part of the federal executive branch, spearheaded by the Biden Ad-

ministration, redirected War on Terror tools previously fixated on Muslim popu-

lations toward new subjects: white supremacist terrorists.

The Biden Administration marshaled counter-radicalization policing

—

the

preventative informant-driven surveillance program

—

as the centerpiece of its

white supremacist counterterrorism strategy. Counter-radicalization theory,

specifically devised with Muslim subjects in mind, seeks to prevent the process

whereby a subject becomes “radicalized,” or ideologically motivated to commit

a violent act. This Article begins by analyzing the War on Terror roots of

counter-radicalization policing, and the state and societal white supremacy that

drove it. Interrogating the entrenched nature of white supremacy within different

government institutions highlights the structural realities that impede its en-

forcement and the harms of extending the powers of the national security

apparatus.

In addition to examining the enforcement perils tied to white supremacist

counterterrorism, this Article introduces the concept of “surveillance relapse.”

Surveillance relapse is the probability that counterterror enforcement will revert

to principal and historic subjects of surveillance

—

Muslim and Black communi-

ties

—

because of the deeply racialized understanding of terrorism rooted in the

federal and local law enforcement agencies tasked with carrying forward sur-

veillance. This Article examines the critiques of a white supremacist counterter-

rorism regime through the prism of three surveillance relapse types: state-

oriented relapse, circumstantial relapse, and structural relapse.

ABLE OF

ONTENTS

NTRODUCTION

.................................................. 70

I. T

OUNTERTERROR

STABLISHMENT

.................... 75

A. The Complexion of Terrorism ......................... 76

B. The Colors of Counter-Radicalization ................. 79

1. Countering Violent Extremism (CVE) ............. 80

2. Countering Islamic Extremism .................... 83

3. Countering White Supremacist Terrorism .......... 86

Harvard University, Scholar-in-Residence, Berkman Klein Center for Internet & Soci-

ety, Initiative for a Representative First Amendment (IfRFA). Associate Professor of Law,

Wayne State Univ. School of Law; Co-Director, Damon J. Keith Center for Civil Rights.

Princeton University, Postdoctoral Fellow, School of Public & International Affairs;

Michigan State University, Assistant Professor of Political Science and Public Policy.

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70 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

II. W

HITE

UPREMACY

, C

OUNTERTERROR

AND

RITIQUES

ETWEEN

............................................... 89

A. White Supremacist Organizations ..................... 91

1. Early Manifestations of White Supremacy ......... 91

2. KKK and he Unwritten Laws of the South ......... 92

3. Institutional Entrenchment of White Supremacy .... 93

4. Resurgence and Mainstreaming of White

Supremacy ...................................... 95

B. Theoretical Concerns of White Supremacy ............. 98

1. Domestic Terrorism’s Global Reach ............... 99

2. The Limits to Attaining Racial Justice ............. 101

3. Deleterious Impact on Communities of Color ...... 102

4. Expansion of Government Powers ................ 104

C. Practical Concerns of Defining White Supremacy ...... 106

III. S

URVEILLANCE

ELAPSE

.................................. 109

A. State Oriented Relapse ............................... 109

B. Circumstantial Relapse .............................. 111

C. Structural Relapse ................................... 113

ONCLUSION

.................................................... 116

NTRODUCTION

“You will not replace us!”

– Renaud Camus

“Terrorism from white supremacy is the most lethal threat to the

homeland today.”

– President Joe Biden

The Tops Friendly Market Store transformed a community. Opening its

doors to the predominantly Black community located on the eastside of Buf-

falo, New York in July of 2003, Tops brought a full-line grocery store to a

food desert.

More than a grocery store, the Tops location instantly emerged

into a “village watering hole,”

where indigent and working class Black

See generally R

ENAUD

AMUS

, Y

ILL

EPLACE

! (2018), the title of the

manifesto adopted as the slogan of disparate white supremacist groups, in the United States

and globally, who believe that the “white race” is being endangered by the rise of communi-

ties of color.

Maanvi Singh & Joan E. Greve, Biden Declares White Supremacists ‘Most Lethal

Threat’ to US as He Marks Tulsa Race Massacre - as it Happened, T

UARDIAN

(Jun. 1,

2021), https://www.theguardian.com/us-news/live/2021/jun/01/joe-biden-tulsa-oklahoma-race-

massacre-us-politics-live [https://perma.cc/R4F6-JPLE].

Jaclyn Diaz, The Tops in Buffalo’s East Side Was a Lifeline. Should it Reopen? NPR

(May 21, 2022), https://www.npr.org/2022/05/21/1099826247/tops-market-history-buffalo-

shooting [https://perma.cc/G5RG-7GDL].

Id.

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2023] The Great Replacement 71

Buffalonians deepened personal relationships and forged news ones. Seem-

ingly overnight, Tops became an epicenter of community, and a standing

symbol of Black Buffalo.

The Blackness of Tops

—

and the neighborhood that it wrapped its arms

around

—

is precisely why it was targeted on May 14, 2022. Payton S. Gen-

dron, an eighteen-year-old white supremacist and ethno-nationalist, parked

his car outside of Tops on Buffalo’s eastside, home to a population that is

approximately 73% Black.

Clad with what seems to be the customary uni-

form of his ideological ilk

—

a military grade helmet mounted with a camera,

body armor, and a modified Bushmaster XM-15 rifle with slurs written

across it and “white lives matter” emblazoned on the car

—

Gendron swung

open its doors and marched into Tops at 2:30 pm to carry out what he came

to do.

It was finally time, that spring afternoon, to convert the musings of dark

imagination into twisted reality. Gendron plodded methodically through the

common areas and aisleways of Tops. Then, he opened fire on anybody and

everybody Black. The majority of Tops shoppers, like the Kingsley neigh-

borhood that surrounds it, were Black. In the midst of his murder spree,

Gendron apologized to a white victim he shot in the leg, sparing his life in

the process of killing more Black people.

But the anti-Black massacre would not be confined to Tops’s walls.

Gendron’s ideological motive fueled a grander, more gruesome aim: satiat-

ing the mounting white supremacist elements that shared his worldview. He

recorded the massacre and livestreamed it on his Twitch account, where his

followers watched Black body after Black body shot and killed in real

time.

After the final round of fire, ten people laid dead. Every single one of

them was Black, bringing the white supremacist’s morbid designs into a

stark and stunning reality.

In just six minutes, Tops was transformed from a site of Black possibil-

ity into the latest landmark of anti-Black murder. Gendron gunned down

nearly two decades of old, entrenched relationships and new ones forged

inside the walls of the institution.

Open Data Buffalo, City of Buffalo Neighborhoods, (last viewed on July 5, 2022), https:/

/data.buffalony.gov/stories/s/Neighborhood-Population-Profile/cry5-9ict/ [https://perma.cc/

835Z-TWCD].

Cameron McWhirter and Sadie Gurman, Accused Buffalo Gunman Described Why He

Chose his Firearms, Body Armor, W

ALL

TREET

OURNAL

(May 15, 2022), https://

www.wsj.com/livecoverage/buffalo-ny-supermarket-shooting-latest-news/card/accused-buf-

falo-gunman-described-why-he-chose-his-firearms-body-armor-7vfPgmLKvLEVV6oE13Cg-

7vfPgmLKvLEVV6oE13Cg [https://perma.cc/9CY6-QDL5].

Bill Chappell, DOJ Charges Buffalo Gunman with Hate Crimes, and Says He Apolo-

gized to a White Victim, NPR (Jun. 15, 2022), https://www.npr.org/2022/06/15/1105226662/

buffalo-payton-gendron-federal-hate-crime [https://perma.cc/5QKK-J4RM].

Taylor Hatmaker, Buffalo Shooter Invited Others to His Private Discord “Diary” 30

Minutes Before Attack, T

ECH

RUNCH

, (May 18, 2022), https://techcrunch.com/2022/05/18/buf-

falo-shooter-journal-discord-google-docs/ [https://perma.cc/2B2D-2BJ4].

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72 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

The Tops Market of yesterday was no more. Its doors shuttered and the

memories that were buried deep on the eastside of this Buffalo community,

ravaged by poverty, had to rally closer together to strengthen the roots of its

community. Those same roots summoned the vile imagination of a gunman

who exacted the aims of a mounting white anxiety, and its accompanying

terror, towards Black people on account of their Blackness.

***

Although Gendron walked into Tops alone on May 14th, he followed

the marching orders of a movement that adapted the very white supremacy

that, centuries earlier, created this nation. The “Great Replacement” theory

fueled his massacre, with its conclusions of a “white genocide” unfolding

with the influx of immigrants and rising influence of Black culture as root

causes.

The white anxiety and rage that swelled across the United States

were fueled by the fear of racial “replacement”. According to Renaud

Camus, Black and Brown, Muslim and immigrant people represent the war

on whites.

Following the dictates of Camus, who brought cogence in the early

2010s to a preexisting ideology with the publication of The Great Replace-

ment, Gendron did his part in reversing the distorted narrative of white geno-

cide.

Camus wrote, within the context of western Europe, that, “[whites]

are being reverse colonized by Black and Brown immigrants, who are flood-

ing the Continent in what amounts to an extinction-level event.”

Gendron,

like Dylan Roof, Brenton Tarrant, and a motley crew of white supremacist

gunmen before him, converted vile words into violent action, adapting

Camus’s conclusions to the American context. Although distinct

—

Tarrant

massacred Muslims in New Zealand on their holy day while Roof and Gen-

dron gunned down Black churchgoers and shoppers

—

they nonetheless

targeted Muslim and Black people as well as Jewish and Latinx people.

These are groups of people who are racially and religiously distinct but ori-

ented as the demographic enemies of the “white race” and their mounting

vigilante calls.

Diaz, supra note 5, at 2.

See generally R

ENAUD

AMUS

, Y

ILL

EPLACE US

(2018).

Id.

Id at 21.

See Khaled A. Beydoun, ‘In New Zealand We Will Give Him Nothing, Not Even His

Name,’ CNN (Mar. 19 2019), https://www.cnn.com/2019/03/19/opinions/ignore-terrorist-re-

member-new-zealand-victims-beydoun [https://perma.cc/XF9H-ZRL2] (recounting the after-

math of the Christchurch massacres that claimed the lives of 50 Muslims).

Jewish Americans, and synagogues, have also been targeted by white supremacist

gunmen this is deeply rooted in this history. The starkest modern incident of anti-Semitic white

supremacist mass murder took place on October 27, 2018, when a gunman killed eleven peo-

ple inside the Tree of Life Synagogue in Pittsburgh, Pennsylvania. See Campbell Robertson,

Christopher Mele, & Sabrina Tavernise, 11 Killed in Synagogue Massacre; Suspect Charged

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2023] The Great Replacement 73

Gendron’s ideology drove his actions

—

meeting the disparate defini-

tions of terrorism spread across the American legal code.

However, the

racial form Gendron presented clashed with the racialized realpolitik that

still prevails today, which conflates terrorism and the threat of it almost ex-

clusively with Muslim identity.

The War on Terror, protracted over two

decades, veritably enshrined this conflation. “Terrorism” and “Islam” were

made inextricable by the shared force of law and propaganda, and as a result,

were politically and popularly understood as synonyms. Shifting cultural

tides, sparked by the Black Lives Matter (BLM) Movement, disrupted this

conflation by branding white supremacy as terrorism.

The string of mass

shootings unleashed by white men converging with the BLM Movement

gave legs to this (re)framing, gradually dislodging the perceived Muslim

monopoly over a form of violence that the state has strategically crafted

since the 9/11 terror attacks. “White supremacist terrorism” entered the dis-

cursive and political lexicons after the January 6th “insurrection” on the

Capitol in Washington, D.C., and it finally commanded the attention of the

state.

At least, and initially, this happened by way of rhetoric.

The upstart Biden regime oriented “white supremacist terrorism” as a

primary national security threat following the disparate movement galva-

nized and trumped up by the previous administration. President Biden

sought to redirect the state’s established counterterror resources toward com-

bating the white supremacist terrorist threat, drawing on the very infrastruc-

ture and tools used to police and punish Muslim communities.

This was the

rhetoric ringing from the White House, which was refreshing for advocates

and scholars that have long lobbied for a neutral reframing of terrorism and

policing strategies stripped of racist and Islamophobic enforcement. Yet, for

With 29 Counts, N.Y. T

IMES

(Oct. 27, 2018), https://www.nytimes.com/2018/10/27/us/active-

shooter-pittsburgh-synagogue-shooting.html [https://perma.cc/4QH6-LXG4].

See generally Keiran Hardy & George Williams, What is “Terrorism?”: Assessing Do-

mestic Legal Definitions, 16 UCLA J.

’

L. & F

OREIGN

FFAIRS

77, 154-59 (2011).

This ascription of terrorism to Islam, and Muslim subjects, forms the basis of Is-

lamophobia, which Beydoun defines as the presumption of terror activity tied to expression of

Muslim identity. See Khaled A. Beydoun, Islamophobia: Toward A Legal Definition and

Framework, 116 C

OLUMBIA

L. R

. O

NLINE

108, 111-19 (2016) (Beydoun defines “private

Islamophobia” as anti-Muslim animus or violence inflicted by individual bigots or actors not

tied to the state; and “structural Islamophobia” as law, policy, and action taken by a state

agency or actor.).

For a popular article demonstrating how the reorientation of white supremacy as terror-

ism emerged during the thick of BLM’s impact, see Sherrilyn Ifill, Call White Supremacy By

Its Name: Terrorism, CNN (Mar. 26, 2017), https://www.cnn.com/2017/03/26/opinions/white-

supremacy-is-terrorism-ifill-opinion [https://perma.cc/4JM6-6TRF].

See generally Daniel L. Byman, Assessing the Right-Wing Terror in the United States A

Year After the January 6th Insurrection, B

ROOKINGS

(Jan. 5, 2022), https://

www.brookings.edu/blog/order-from-chaos/2022/01/05/assessing-the-right-wing-terror-threat-

in-the-united-states-a-year-after-the-january-6-insurrection/ [https://perma.cc/KQH7-QQYQ].

See Hannah Allam & Ellen Nakashima, Biden’s Domestic Terrorism Strategy Details

Unprecedented Focus on Homegrown Threats, W

ASH

. P

OST

(Jun. 15, 2021), https://

www.washingtonpost.com/national-security/biden-strategy-domestic-extremism/2021/06/14/

d88250c8-cd4e-11eb-9b7e-e06f6cfdece8_story.html [https://perma.cc/WXD5-DB4M].

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74 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

critics, plans to counter white supremacist terrorism were riddled with seri-

ous concerns, and spurred conclusions that new racial labels would serve the

same old racist counterterror enforcement aims.

This Article analyzes another great replacement standing atop “The

Great Replacement” ideology that drives white supremacist terror. Specifi-

cally, the Biden Administration’s renewed mandate to direct state antiterror

tools, with counter-radicalization as the principal policing tool, to counter

white supremacist terrorism in replacement of Islamic terrorism. Counter-

radicalization, the “signature antiterror program” adopted federally by the

Obama Administration in 2011 and later adapted by President Donald Trump

when he entered the presidency six years later, focused wholly on “policing

radicalization” within Muslim communities inside the United States.

conceptualized radicalization, like its mother phenomenon of “terrorism,”

almost exclusively to Muslim subjects.

The events of January 6th

—

and the tentacles of white supremacist vio-

lence that preceded and followed it

—

drummed up support for an unprece-

dented shift in counterterror philosophy and enforcement. This included

reconfiguration of counter-radicalization to fixate centrally on the oldest

form of American terror that took on a modern form: white supremacy.

However, a myriad of critics raised practical and political concerns around a

counter-radicalization regime focused on white supremacist terrorism, with

others opposing the view that white supremacy should be labeled “terror-

ism” at all.

The majority of these critiques center on fears that white su-

premacist terrorism would extend, direct, or spur collateral harms on

overpoliced communities of color, namely the principal targets of the War

on Terror counterterror establishment: Muslims in the United States.

This Article identifies and interrogates these critiques, contributing a

cogent analysis of the coming white supremacist counterterror strategy to the

literature. In addition to surveying existing critiques made by law scholars,

advocates, and activists, this Article also presents novel concerns with the

formation of counter-radicalization policing strategies targeting white

supremacists. The replaced focus on white supremacists, instead of Muslims

as the primary subjects of counterterrorism, does little to change the cultures

of white supremacy embedded within the policing agencies tasked with car-

rying it out. The institutionalization of white supremacy and Islamophobia

within the federal and local law enforcement agencies tasked with enforcing

counter-radicalization against white supremacist elements will likely: (1) de-

rail the very possibility of carrying forward such a program; (2) drive under-

policing of white supremacist groups; (3) enable the continuance of Muslim

Khaled A. Beydoun, Stephen Paddock, A ‘Lone Wolf?’ Our Stunning Double Standard

When it Comes to Race and Religion, W

ASH

. P

OST

(Oct. 2, 2017), https://

www.washingtonpost.com/news/acts-of-faith/wp/2017/10/02/lone-wolf-our-stunning-double-

standard-when-it-comes-to-race-and-religion/ [https://perma.cc/6PVA-ACZ3].

See infra Part II(A).

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2023] The Great Replacement 75

over-policing; and (4) entrench and expand community surveillance after a

violent attack involving a Muslim culprit.

These predictable outcomes, tied to the weight of history and the deeply

institutionalized concern with Muslim terrorism, drive our conclusion that

replacing “counter-radicalization of Muslims” with “counter-radicalization

of white supremacists” will do more harm than good for overpoliced com-

munities of color. Framing white supremacy as a menace that exists beyond

the bounds of the state, and the very agencies tasked with countering terror-

ism, overlooks its institutional entrenchment on the federal and local levels,

and the salient role the various stratas of the state play in perpetuating it.

This Article will proceed in three parts. Part I will survey counter-radi-

calization policing targeted toward Muslims and the distinct iterations of it

enforced by the Obama, Trump, and finally the Biden Administration, which

is poised to refocus on white supremacists.

Part II will examine the scholarly and grassroots concerns with mar-

shalling established counterterror tools against white supremacist violent ac-

tors. It leads with historical contextualization of the embedded nature of

white supremacy, and then articulates the theoretical reservations of ori-

enting white supremacist violence as terrorism. This is followed by the prac-

tical critiques of deploying counter-radicalization policing against white

supremacists.

Part III engages with the critical observations in Part II and presents the

likely effects of a relapse in white supremacist counter-radicalization regime

upon Black, Brown, and Muslim communities

—

who were once the primary

targets of the state and white supremacist violent actors. In particular, this

section will discuss three potential scenarios where such a relapse could oc-

cur: a likely state-oriented relapse, if there is a shift in a presidential admin-

istration with differing political motivations; circumstantial relapse, if there

is a Muslim culprit, how these policies would be used to further target Mus-

lims; and structural relapse, taking into account the disjointed nature of local

law enforcement equitably following through with federal agency orders.

I. T

OUNTERTERROR

STABLISHMENT

The events of January 6th, and the white supremacist storm that precipi-

tated it, spurred declarations that the old War on Terror was no more. Others,

including President Biden, declared in its wake that white supremacy was

the primary terrorist threat “to the homeland.”

Despite proclamations ring-

ing from pundits and politicians to the contrary, and the paradigm shift

spurred by the pandemic,

the War on Terror architecture designed to police

Singh & Greve, supra note 4, at 4.

See Ben Rhodes, The 9/11 Era is Over, T

TLANTIC

(Apr. 6, 2020), https://www.the

atlantic.com/ideas/archive/2020/04/its-not-september-12-anymore/609502/ [https://perma.cc/

ML6Q-LTQA] (contending that the coronavirus pandemic marked a shift away from the War

on Terror era).

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76 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

Muslims remained firmly in place. In addition to the network of institutions

and agencies tasked with policing Muslim communities, and the laws and

programs created to counter terrorism within them, the prevailing epistemol-

ogy that framed terrorism exclusively along the contours of Muslim identity

remained deeply embedded. The complexion of terrorism, despite facially

neutral legal definitions and rising concern about white supremacy, main-

tained its Brown and Muslim form in the popular imagination and state

institutions.

This Part examines this racialized epistemology of Muslim terrorism,

and the signature surveillance policy created to combat it. Section A surveys

the racial construction of Muslim terrorism, drawing on the rich interdisci-

plinary literatures that followed and preceded 9/11. Section B examines the

arc of counter-radicalization policing, a cornerstone surveillance program

devised to prevent Islamic terrorism, which the Biden Administration seeks

to repurpose to counter white supremacist terror.

A. The Complexion of Terrorism

The banal claim that white supremacy is the “new terrorism” is echoed

widely. People who hold this view overlook the settler colonial violence that

created this nation and destroyed entire peoples in the process. Implicitly,

they cling to the belief that terrorism is the original domain of Islam. The

indemnification of whiteness from terrorism and the racialization of the im-

age of Muslim identity demonstrates how the phenomenon is both politically

and discursively imagined.

“Terrorists are always Muslim but never white.”

With this plain-spo-

ken thesis, Law Scholar Caroline Mala Corbin summarized a reciprocal

racialization solidified by the War on Terror, but written well before the

United States became a sovereign nation. The valorization of whiteness

formed the epistemological and legal building blocks of the United States,

hallmarked by legislation enacted in 1790 that made it a prerequisite for

citizenship.

Converging with the enshrinement of whiteness as citizenship

and the panoply of property interests that came along with it,

Islam was the

“Racialization” is defined as “an unstable and de-centered complex of social meanings

constantly being transformed by political struggle” assigned to identifies in society. M

ICHAEL

& H

OWARD

INANT

, R

ACIAL

ORMATION IN THE

NITED

TATES

: F

ROM THE

1960

STO

THE

1990

, 55 (1994); see also E

RIK

OVE

, I

SLAMOPHOBIA AND

ACISM IN

MERICA

(2017)

(examining how race figures into the formation of Islamophobia).

Caroline Mala Corbin, Terrorists Are Always Muslim but Never White: At the Intersec-

tion of Critical Race Theory and Propaganda, 86 F

ORDHAM

L. R

. 455, 456 (2017).

Naturalization Act of 1790, ch. 3, 1 Stat. 103 (1790) (limiting naturalization to ‘Whites,’

which restricted citizenship to immigrants who fit within the racial parameters of Muslim

identity); see I

ANEY

OPEZ

, W

HITE

: T

EGAL

ONSTRUCTION OF

ACE

(1996)

(analyzing the racially restrictive “Naturalization Era,” which lasted until 1952).

See generally Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707,

1715–1720 (1993) (examining the process of constructing Blackness through the legal legiti-

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2023] The Great Replacement 77

antithesis of European civilization.

This orientation of Islamic otherness

was exported into the United States, and found its imprint on the nation’s

nascent institutions and political narratives.

The “democratic” identity of the United States was simultaneously wo-

ven in the image of whiteness and against the specter of Islamic “tyranny,”

as trenchantly documented by historian Robert Allison.

Allison wrote,

“Americans of different political philosophies disagreed on the particular

lessons drawn from Muslim history. But all of them, Tories and Patriots,

Republicans and Federalists, agreed that Islam fostered religious and politi-

cal oppression.”

Democracy was entwined with whiteness, and tyranny en-

meshed with Islam as its nonwhite talisman. This brand of American

Orientalism fueled the making of the nation and solidified the view

—

both

popularly and legally

—

that Islam was inimical to democracy, and Muslim

identity opposable to whiteness.

In the nation’s embryonic passages, the seeds of white indemnity and

individuality were being sowed alongside the political construction of Islam

as potently undemocratic, and pointedly un-American.

Religion, particu-

larly Islam and its virtuous foil Protestantism, was central to the American

race-making project, and both served as measuring sticks of de jure white-

ness until the dissolution of the Naturalization Era in 1952. The complexion

of Protestantism, which seeded the religious contours of whiteness before

the racial category was formally created, was reflected by the “sacred” color

of Christ and the vile tone of the “charlatan” Mohammed.

Through these

early narratives, the formation of the Muslim terrorist trope gripped the

American imagination (and its prevailing institutions) centuries before 9/11,

while the exemption of whites from guilt of collective violence took on the

righteous moniker of “Manifest Destiny.”

mation of slavery, and the concomitant making of whiteness as the pinnacle property posses-

sion that enabled myriad other forms of property rights, most notably, citizenship).

See generally E

DWARD

AID

, O

RIENTALISM

(1979) (framing the master discourse of the

same name, whereby European, then American, political, cultural, and societal gatekeepers

defined western, “Occidental,” institutions and enterprises in mirror opposite terms of a flatly

constructed Muslim world, which Said dubbed the “Orient.”; See also S

AMUEL

P. Huntington,

LASH OF

IVILIZATIONS AND THE

EMAKING OF

ORLD

RDER

(1996), (perpetuating

modern Orientalism by articulating how the “Muslim world” is at odds with the west and

destined for a civilizational clash).

See Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab

American Identity, 69 NYU A

. S

URV

MER

. L. 29 (2013) (examining how Islam func-

tioned as bar to naturalized citizenship until 1944).

OBERT

LLISON

, T

RESCENT

BSCURED

: T

NITED

TATES AND THE

USLIM

ORLD

, 1776-1815 35 (1995).

See generally Beydoun, supra note 31.

Id.

See E

DWARD

J. B

LUM

& P

AUL

ARVEY

, T

OLOR OF

HRIST

: T

ON OF

OD AND

THE

AGA OF

ACE IN

MERICA

11 (Univ. of N.C. Press 2012) (The colonists “presented their

racial ideology as sacred, and therefore as above human creation and beyond human

control.”).

The grand settler colonial narrative that the expansion of the United States, by mass

violence and genocide, was sanctioned by divine belief and state fiat.

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78 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

9/11 and its aftermath cemented the “reciprocal racialization” of white-

ness and Islamic violence.

While reactions to the event “redeployed old

Orientalist tropes” readapted to construct the masculine Muslim terrorist

caricature, the War on Terror modernized the imperial mandate of white vio-

lence.

But this time, it did so on a global scale. The categorical racializa-

tion of Muslims as terrorists justified illegal wars abroad and illegal dragnets

on the home-front; the former campaigns plotted to expand American geo-

political interests and the former devised to deepen the reach of the security

state. Much like the state-making missions of Manifest Destiny and slavery,

whereby Native peoples were racialized as “barbarians” and Africans re-

duced to property, the War on Terror marked Muslims as terrorists in an

empire expanding expediently.

Without this epistemological baseline, the

creation of the Department of Homeland Security (DHS), the enactment of

the US PATRIOT Act, or popular support for a “new global crusade” that

divided the world into two warring civilizations would not have been possi-

ble.

“You’re either with us or against us,” President George W. Bush or-

dered, with Islam and 5 million adherents in the United States and 1.8 billion

globally standing as the presumptive enemy.

“Terrorism,” by law and propaganda, meant “Muslim.”

But how did

this new fixation on “Islamic terror” impact the contours and complexion of

whiteness?

Islamic Law scholars have written at length about the racialization of

Muslims as terrorists, but have only implicitly theorized how the War on

Terror

—

as a multi-directional race-making project

—

remade the contours of

whiteness.

The global and domestic campaign injected white identity with

This phrase observes that, in part, the making of whiteness was constructed in mirror

opposite terms to the misrepresentation of Islam, and Muslim identity.

Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. R

. 1575, 1586 (2002).

See D

EEPA

UMAR

, I

SLAMOPHOBIA AND THE

OLITICS OF

MPIRE

: 20 Y

EARS

FTER

9/11

(Verso 2nd ed. 2021), who argues this very point.

See generally K

HALED

A. B

EYDOUN

, T

RUSADES

: I

SLAMOPHOBIA AND THE

LOBAL

AR ON

USLIMS

(2023), which frames the War on Terror as a “new global crusade”

that enables and intensified a transnational crackdown on the dignity, rights, and lives of Mus-

lim populations globally.

Nine days after the 9/11 terror attacks, President George W. Bush stated in front of a

joint session of Congress, “Our war on terror begins with Al Qaeda, but it does not end there.

It will not end until every terrorist group of global reach has been found, stopped, and defeated

. . . Either you are with us, or you are with the terrorists.” Text: President Bush Addresses the

Nation, T

ASHINGTON

OST

3-4 (Sept. 20, 2001), https://www.washingtonpost.com/wp-

srv/nation/specials/attacked/transcripts/bushaddress_092001.html [perma.cc/S4UP-NLQ4].

See Khaled A. Beydoun, Lone Wolf Terrorism: Types, Stripes, and Double Standards,

112 N

U. L. R

. 1213 (2018) (examining how War on Terror policy deeply conflated politi-

cal and discursive understandings of terrorism with Muslim identity, and ascribed collective

suspicion of terrorism to anybody who adhered to the faith).

The term “Islamic terrorism,” mainstreamed by Bush Administration and the intelli-

gentsia appointed to feed the War on Terror narrative, drilled the idea that Islam held exclusive

dominion over the violent enterprise.

See Natsu Taylor Saito, Symbolism Under Siege: Japanese American Redress and “Rac-

ing” of Arab Americans as “Terrorists,” 8 A

SIAN

L. J. 1, 12 (2001), who observed in the

immediate wake of the 9/11 terror attacks that, “Just as Asian Americans have been ‘raced’ as

\\jciprod01\productn\H\HLC\58-1\HLC101.txt unknown Seq: 11 17-MAR-23 14:52

2023] The Great Replacement 79

an unhinged zeal that justified the mass killing of Muslims in Afghanistan

and Iraq; the desensitized, nonstop droning of villages in Somalia, Yemen,

Pakistan, and beyond; and the systems of surveillance and punishment that

dissolved the civil liberties of Muslims and left them vulnerable to vigilante

violence.

Whiteness was re-weaponized and armed to the teeth with the

ammunition of unchecked patriotism that validated its mass violence against

a people marked as terrorists

—

whether citizens on American soil or be-

sieged people standing atop their own land.

The War on Terror, which often devolved into state-sponsored terror,

peddled the myth that Islam “radicalized” its adherents, and it alone inspired

terrorism.

After the War on Terror establishment was constructed by the

neoconservative Bush Administration, countering this “radicalization”

emerged as the focal counterterror strategy of the presidential regimes that

followed. All of which, including President Biden’s plan to refocus counter-

radicalization on white supremacists, colored terrorism in the exclusive com-

plexion of Islam.

B. The Colors of Counter-Radicalization

In Islamophobia and the Politics of Empire, media studies scholar

Deepa Kumar argues that “surveillance is a mechanism of racialization that

turns the target group into a suspicious race.”

This apt observation fixates

on Muslims, standing as the subject of surveillance and reconstructed during

the War on Terror in the image of the modern terrorist.

However, the enter-

foreign, and from there as presumptively disloyal . . . Muslims have been ‘raced’ as ‘terrorists,’

foreign, disloyal, and imminently threatening.” See also Leti Volpp, The Citizen and the Ter-

rorist, 49 UCLA L. R

. 1575, 1576 (2002), who observed, “September 11 facilitated the

consolidation of a new identity category that groups together persons who appear ‘Middle

Eastern, Arab, or Muslim.’ This consolidation reflects a racialization wherein members of this

group are identified as terrorists, and disidentified as citizens.”; S

AHAR

ZIZ

, T

ACIAL

USLIM

(Univ. of Cal. Press 2022), for a recent treatise examining how the converging racial

construction and religious demonization of Muslims in the United States, since the formative

stages of American sovereignty, drives contemporary political and legal understanding of the

faith group.

See Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law

After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. A

. S

URV

. A

L. 295, 327-55 (2001) for an examination of the domestic counterterror and immigration poli-

cies enacted in the immediate wake of the 9/11 terror attacks. See also Muneer I. Ahmed, A

Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passion, 92 C

. L.

. 1261, 1265 (2004) (Ahmed classifies public crimes of passion as those targeting popula-

tions within the U.S. that are perceived as Muslim on account of phenotype; a form of vigi-

lante violence abetted by state law and propaganda).

Radicalization is the process by which an individual adopts an extremist ideology that is

linked to terrorist activity. Although not explicitly associated with Islam, the term has been

discursively and politically linked to Muslims. See Amna Akbar, Policing “Radicalization”, 3

U.C. I

RVINE

. L. R

. 809, 811 (2013). See generally Samuel J. Rascoff, The Law of Home-

grown (Counter) Terrorism, 88 T

. L. R

. 1715 (2010) (examining the origins of U.S. law

and policy addressing homegrown radicalization).

UMAR

, supra note 39, at 23.

Volpp, supra note 44, at 1575.

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80 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

prise of state surveillance requires a surveillant, and the group standing be-

hind the lens can be remade through the regulatory process. This is

particularly true with the making of a new “total surveillance state,” ushered

in by the War on Terror and its vast tentacles of state monitoring, control,

and punishment.

Surveillance functioned as the lifeline of state-sponsored Islamophobia,

and counter-radicalization policing emerged as the most nefarious form

through the Obama, Trump, and Biden Administrations. This Section

surveys the establishment and arc of counter-radicalization policing, outlin-

ing its reformulation and enforcement by the Obama, Trump, and Biden

Administrations.

1. Countering Violent Extremism (CVE)

The Obama Administration inherited a War on Terror that it mutated in

presentation but was keen on maintaining. The bellicosity of the Bush ap-

proach could not be reconciled with the progressive cloak and neoliberal

aims of the new order, which mandated a War on Terror makeover as soon as

President Obama stepped into power.

The undressing of the “civilizational standoff” that characterized the

posture of the Bush Administration began in a center of Islamic life: Al

Azhar University in Cairo.

Taking stage in Egypt, before luminaries in at-

tendance and billions watching the upstart American president virtually,

Obama delivered a powerful address promising to mend eight years of War

on Terror wounds with “A New Beginning.”

He declared,

I’ve come here to Cairo to seek a new beginning between the

United States and Muslims around the world, one based on mutual

interest and mutual respect, and one based upon the truth that

America and Islam are not exclusive and need not be in competi-

tion. Instead, they overlap, and share common principles

—

prin-

ciples of justice and progress; tolerance and the dignity of all

human beings.

The audience hung on to each sentence. An orator of the first order, Obama

even quoted the Quran and wove together words that, one by one, con-

See generally D

AVID

YON

, S

URVEILLANCE

FTER

EPTEMBER

11 (SAGE Publ’n 2003)

[hereinafter S

URVEILLANCE

FTER

9/11], for a leading treatise examining how the 9/11 terror

attacks spawned wholesale formulation and enforcement of surveillance on a global scale. This

Article adopts David Lyon’s definition of surveillance, which he frames as “the focused, sys-

tematic and routine attention to personal details for purposes of influence, management, pro-

tection or direction.” D

AVID

YON

, S

URVEILLANCE

TUDIES

14 (2007).

Remarks By President at Cairo University on A New Beginning, T

HITE

OUSE

(June 4, 2009), https://obamawhitehouse.archives.gov/the-press-office/remarks-president-

cairo-university-6-04-09. [perma.cc/HW3U-8UQU].

Id.

\\jciprod01\productn\H\HLC\58-1\HLC101.txt unknown Seq: 13 17-MAR-23 14:52

2023] The Great Replacement 81

structed the new surveillance order to come. An order that weaponized

words, and the carrot of coexistence and collaboration, to deepen “the gaze”

of the state in mosques, households, civic institutions, and Muslim commu-

nities at large.

The false allure of coexistence flouted by Obama lured Muslims to be

co-surveillants in their own unmaking. The promise of inclusion, seeded in

Cairo and continued during Obama’s first term, functioned as the foundation

of the new surveillance regime to come. The symbiosis of inclusivity as a

rhetoric and community surveillance as a renewed strategy formed the crux

of Obama’s “signature counterterror program:” counter-radicalization. This

deftly enlisted Muslims as the eyes and ears of the state in spaces that the

state had difficulty reaching or could not reach.

The Obama Administration titled the new community surveillance pro-

gram “Countering Violent Extremism (CVE).” Modeled after the British

PREVENT Program and the New York Police Department (NYPD) “Spying

on Muslims Program,” the federal surveillance program harmonized the re-

sources of the federal surveillance agencies with the on-the-ground presence

of local law enforcement departments.

CVE, like its foreign and local pred-

ecessors, focused on “preventing . . . radicalization,” adopting a flawed the-

ory of radicalization designed in the image of Muslims and Islam.

Community informants, enlisted from Muslim communities, feed data to lo-

cal law enforcement, who then share with federal counterterrorism agencies

within DHS. In turn, this forms a data gathering pipeline where the most

intimate Muslim geographies serve as the fountainhead of information that is

fed to city police offices and even up to Washington, D.C.

While facially neutral, and only mentioning “Muslim” once throughout

the document introducing it, CVE was virtually wholly enforced against

Muslim communities.

In Policing “Radicalization,” law scholar Amna

Akbar explicates the theory of Muslim radicalization adopted by DHS under

Here, I use “the gaze” in direct reference to Michel Foucault’s foundational theorizing

on state surveillance as a system of discipline and control. See M

ICHEL

OUCAULT

, D

ISCIPLINE

AND

UNISHMENT

: T

IRTH OF A

RISON

205 (Alan Sheridan trans., Pantheon Books 1975).

Rascoff, supra note 46, at 1735.

See generally Fahid Qurashi, The Prevent Strategy and the UK “War on Terror:” Em-

bedding Structures of Surveillance Within Muslim Communities, 4 P

ALGRAVE

OMM

. (2018),

for an examination of Prevent’s surveillance architecture driven by its philosophy of “prevent-

ing” the process of Islamic “radicalisation” within concentrated Muslim communities and

enclaves throughout the United Kingdom. See also Mapping Muslims: NYPD Spying and its

Impact on American Muslims, CLEAR P

ROJECT

, https://www.law.cuny.edu/wp-content/

uploads/page-assets/academics/clinics/immigration/clear/Mapping-Muslims.pdf [https://

perma.cc/Q87D-WMK4] (last visited July 13, 2022), critically examining the NYPD strategy

of monitoring Muslim life in the tri-state area through deployment of informants in heavily

populated Muslim spaces and geographies.

XEC

. O

FFICE OF THE

RESIDENT

, D

’

TOF

OMELAND

ECURITY

, S

TRATEGIC

MPLE-

MENTATION

LAN FOR

OCAL

ARTNERS TO

REVENT

IOLENT

XTREMISM IN THE

NITED

TATES

20 (2011), https://obamawhitehouse.archives.gov/sites /default/files/sip-final.pdf

[https://perma.cc/7VPL-AESV] [hereinafter CVE 2011].

Id. at 8.

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82 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

the Obama Administration: “Radicalization suggests that the path from

Muslim to terrorist is a predictable one produced by or correlated with relig-

ious and political cultures of Muslim communities. Government radicaliza-

tion discourses and programs are almost entirely fixated on Islam and

Muslims.”

Like its proxy, terrorism, “radicalization” was politically con-

flated with Islam under the Obama regime, despite overtures that his admin-

istration would mend the wounds of Bush’s “War on Terror.”

Rather, he

adapted it and moved it forward.

In short, and in line with Obama’s rhetorical pitch, CVE touted in-

clusivity with Muslims as a strategy to lure informants from the community,

and simultaneously, disarm its posture of being antagonist toward the state.

The “institutional focus on winning Muslim ‘hearts and minds’” drove the

CVE mission,

flanked by the enforcement strategy of fixating entirely on

Muslim terrain.

The enlisting of native informants from within the commu-

nity evoked the analysis of postcolonial thinker Frantz Fanon, who observed

how colonial powers situationally elevated individuals among the colonized

as instruments to perpetuate the masses undoing.

Select Muslims were ele-

vated to carry forward the newly minted CVE Program; individuals were

appointed to positions with DHS and DOJ; civic and community organiza-

tions were awarded grants to function as interlocutors and legitimators of

Muslim-surveillance; and masses were enlisted as informants to monitor

mosques, Muslim Student Associations (MSA’s), and specific subjects of

interest.

CVE further eroded and chilled the free exercise of religious liber-

ties of Muslims, in addition to the panoply of First Amendment activity that

coincided with religious exercise.

This was particularly the case for indi-

gent and immigrant Muslim communities, where CVE scrutiny and impact

was oftentimes more intense.

In February 2015, the DHS-steered CVE Program formally launched

partnership with local law enforcement departments. This expansion of CVE

started with Boston, Los Angeles, and Minneapolis as pilot programs, where

“[f]ederal departments and agencies have begun expanding support to local

stakeholders and practitioners who are on the ground serving their communi-

Akbar, supra note 46, at 811.

See A New Beginning, supra note 50.

Rascoff, supra note 46, at 135.

Akbar, supra note 46, at 855-59.

See F

RANZ

ANON

, W

RETCHED OF THE

ARTH

(1961), for a formative analysis of the

psychological impact of colonization on peoples dispossessed of their lands and disconnected

from their independence.

See K

HALED

A. B

EYDOUN

, A

MERICAN

SLAMOPHOBIA

: U

NDERSTANDING THE

OOTS AND

ISE OF

EAR

125-151 (2018).

As Akbar notes, “Places for religious and political discussion and gathering, and poten-

tial organizing, became important targets for intelligence gathering.” Akbar, supra note 46, at

855.

See generally Khaled A. Beydoun, Between Indigence, Islamophobia and Erasure, 104

. L. R

. 1463 (2016) (examining how counter-radicalization surveillance is dispropor-

tionately enforced against poor, Black and Brown Muslim populations in the U.S.).

\\jciprod01\productn\H\HLC\58-1\HLC101.txt unknown Seq: 15 17-MAR-23 14:52

2023] The Great Replacement 83

ties.”

These cities, selected for their large and concentrated Muslim com-

munities, would form the foundation for a readapted War on Terror strategy

that exploited Muslim individuals and organizations as the “eyes and ears”

of the state.

“Building relationships” with Muslim communities was a se-

ductive guise, which opened the doors for an intimate form of surveillance

that divided communities and perpetuated the myth that terrorism and its

precedent step

—

“radicalization”

—

was uniquely Muslim.

2. Countering Islamic Extremism

“Islam hates us.”

These three words, and the presidential campaign

surrounding them, eschewed the strategic inclusivity that drove the Obama

surveillance state.

In fact, Donald Trump disavowed the very notion that

reconciliation with the Muslim world was at all possible, and ushered in an

order whereby the explicit rhetoric from the White House matched the bona

fide aims of the War on Terror project.

He intensified the neoconservative

vocabulary of “militant Islam,”

but coupled it with the looming notion that

the United States is a white, Christian nation fending itself against demo-

graphic doom.

FACT SHEET: The White House Summit on Countering Violent Extremism, T

HITE

OUSE

(Feb. 18, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/02/18/

fact-sheet-white-house-summit-countering-violent-extremism [https://perma.cc/93GJ-FXJC].

These were the exact words of democratic presidential hopeful Hillary Clinton, who

said: “We need American Muslims to be part of our eyes and ears on our front lines” during

the 2016 presidential debates. See Ismat Sarah Mangla, Hillary Clinton Has an Unfortunate

Way of Talking About Muslims, Y

AHOO

! F

INANCE

(Oct. 20, 2016), https://finance.yahoo.com/

news/hillary-clinton-unfortunate-way-talking-050353453.html?guce_referrer=AHR0cHM

6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAK540IGLK-1qmKuRbXjh0gbi

FNxDxL6UHeI2tJsNEqgigcGrjB7ZfqlpICbABRPfM1zZG_WtuB3dwvSjSSA2FLdzZNZ

3LcMYZiBwFUny7s7ueGZ1gtMSfFNoVrLZvK5oyU1raW3NFSat_aeVVqMbngPwg

BNU88b6uiGyxyjI5xLs&guccounter=1 [https://perma.cc/KEH8-NXMU].

Amna Akbar, National Security’s Broken Windows, 62 UCLA L. R

. 834, 890 (2015).

Jose A. DelReal, Trump: ‘I Think Islam Hates Us,’ WASH. POST (Mar. 9, 2016), https:/

/www.washingtonpost.com/news/post-politics/wp/2016/03/09/trump-i-think-islam-hates-us/

[https://perma.cc/HT8U-NTQ5].

See Khaled A. Beydoun, “Muslim Bans” and the (Re)Making of Political Islamophobia,

2017 U. I

. L. R

. 1237 (2017) [hereinafter Remaking of Political Islamophobia] (analyz-

ing how Islamophobia was crafted and deployed by a number of presidential candidates, most

notably Trump, as full-fledged campaign strategy).

Jenna Johnson and Abigail Hauslohner, ‘I think Islam hates us’: A timeline of Trump’s

comments about Islam and Muslims, WASH. POST (May 20, 2017), https://

www.washingtonpost.com/news/post-politics/wp/2017/05/20/i-think-islam-hates-us-a-time-

line-of-trumps-comments-about-islam-and-muslims/ [https://perma.cc/5R3J-MKZU].

See H

AMID

ABASHI

, B

ROWN

KIN

, W

HITE

ASKS

12 (2011), who wrote about the

indelible imprint the likes of Francis Fukuyama, Samuel Huntington, and other scholar-advo-

cates of the War on Terror had on Washington, D.C.

Ironically, Trump restored the “Clash of Civilizations” worldview curated by Samuel P.

Huntington, but also referred heavily to another of his texts, W

? T

HALLENGES

MERICA

’

ATIONAL

DENTITY

37-80 (2004), that affirmed that “American identity” is

fundamentally characterized by its White Anglo Saxon Protestant “Creed.”

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84 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

After seven years, CVE was no more. Trump’s furious Islamophobia,

symbolized most starkly by his order to “ban Muslims,” unplugged its very

lifeline.

The Muslim interlocutors needed to make CVE function were cast

out by the new Executive

—

and those that would have still chosen to col-

laborate with a Trump surveillance order would have been marked pariahs

by the community.

CVE was replaced by a renewed antagonism that superseded the ne-

oconservatism of the War on Terror’s architects. While the Bush Administra-

tion drew binaries severing “good” from “bad” Muslims, and Obama strung

smokescreens of peaceful “coexistence” to carry forward community sur-

veillance, Trump tore down the formative myths and neoliberal mirages er-

ected before him.

“Islam” hates “us,” he proclaimed, orienting the former

as a people divorced from the proverbial us, or U.S., which he viewed

through the narrow prism of whiteness.

Counter-radicalization did not yield, however, under Trump. Instead of

confining its War on Terror strategy on a single, signature program, the

Trump Administration expanded the state’s anti-Muslim ire on a network of

policies he enacted or was poised to see through. After signing the Muslim

Ban executive order, President Trump discussed restructuring CVE and

renaming it “Countering Radical Islamic Extremism,” undressing the

Obama program of its neutral fa¸cade and fixating it on its bona fide aim.

Many Muslim recipients of CVE grants rejected funds and work from the

Trump Administration, while DHS rescinded funding of others.

However,

plans to reform CVE were muted by the turbulence that marked Trump’s

presidential term and the anti-Muslim hysteria that spilled from the state in

the form of vigilante violence, hate crimes, and unreported hate incidents.

A week after his inauguration, President Trump signed Executive Order 13769 into law.

In the hours after, airports across the United States were instantly transformed into holding

cells. Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg.

8977 (Jan. 27, 2017), revoked by Protecting the Nation from Foreign Terrorist Entry into the

United States, 82 Fed. Reg. 13,209 (Mar. 6, 2017). The Executive Order, widely called the

“Muslim Ban,” was upheld by the Supreme Court. Trump v. Hawaii, 138 S. Ct. 2392, 2408

(2018) (holding that “[t]he President lawfully exercised that discretion based on his finding

. . . that entry of the covered aliens would be detrimental to the national interest”).

See Karen Engle, Constructing Good Aliens and Good Citizens: Legitimizing the War

on Terror(ism), 75 U. C

OLO

. L. R

. 59, 68-70 (2004). Principal among “good Muslim” ex-

pressions are not supporting American War on Terror policy, dressing in a western style, and

placing an American flag on one’s home. See also M

AHMOOD

AMDANI

, G

OOD

USLIM

, B

USLIM

: A

MERICA

THE

OLD

AND THE

OOTS OF

ERROR

15 (2004) (examining the

genesis of the good-bad Muslim binary and its global application).

See DelReal, supra note 69.

Eric Rosand and Steven Weine, On CVE, The Trump Administration Could Have Been

Worst. But It’s Still Not Good Enough, B

ROOKINGS

(Apr. 7, 2020), https://www.brookings.edu/

blog/order-from-chaos/2020/04/07/on-cve-the-trump-administration-could-have-been-worse/

[https://perma.cc/FH52-BF3F].

Id at 1.

Reuters Staff, U.S. anti-Muslim hate crimes rose 15 percent in 2017: advocacy group,

EUTERS

(Apr. 23, 2018), https://www.reuters.com/article/us-usa-islam-hatecrime/u-s-anti-

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2023] The Great Replacement 85

Despite the stalled restructuring of CVE, it continued under the Trump

Administration with diminished funding and minimal Muslim community

support. It was not officially renamed, but informally recharacterized by

anti-Muslim rhetoric that emanated from the White House and key Trump

officials. Community surveillance converged with the atmosphere of anxiety

and paranoia sowed by the Muslim Ban, particularly in Muslim communities

populated by nationals from barred states, whereby informants were devel-

oped under the pressure of threatened removal or third party (family) suspi-

cion.

Following the footsteps of the Obama Administration, community

surveillance under Trump fixated almost wholly on Muslims. But unlike the

previous administration, this administration utilized an unabashed vocabu-

lary that paired terrorism with Islam, to supplement its enforcement strategy.

However, it continued the CVE philosophy of “preventing” radicalization

through its enforcement mechanisms, shifted from a local law enforcement/

informant model to an immigration/surveillance model with plans to for-

mally restructure CVE during a second presidential term that would not

come.

Trump’s surveillance philosophy was expressly punitive and expanded

its ire on Black activists in addition to Muslims. In 2017, an FBI report

targeting “Black Identity Extremists (BIE)” was leaked.

The report out-

lined a program to surveil activists sympathetic to the movement to combat

anti-Black racism, and namely, police brutality against Black people.

focused most intensely on activists tied to the BLM Movement and Black

elements sympathetic to it. Writing for The New York Times, law scholars

Khaled A. Beydoun and Justin Hansford observed,

[T]he fabrication of a “B.I.E.” movement that could justify the

F.B.I.’s marshaling of its counterterrorism capabilities against any-

one who it decides fits the vague, baseless designation potentially

threatens the civil liberties of all Americans. The COINTELPRO

program began with an effort to prevent the rise of a “black mes-

siah who could unify and electrify the militant black nationalist

movement” and evolved to target the American Indian Movement,

the Brown Berets and those who protested against the Vietnam

War. Similarly, the F.B.I.’s broadening of the “War on Terror” to

include Black Identity Extremists in addition to the primary targets

muslim-hate-crimes-rose-15-percent-in-2017-advocacy-group-idUSKBN1HU240 [https://

perma.cc/ZMY4-Z8X2].

See Khaled A. Beydoun, The Ban and the Borderlands Within: The Travel Ban as a

Domestic War on Terror Tool, 71 S

TANFORD

EVIEW

NLINE

251 (2019).

Rosand and Weine, supra note 77, at 3.

The BIE designation is outlined in the FBI report, leaked shortly after its publication.

OUNTERTERRORISM

., FBI, B

LACK

DENTITY

XTREMISTS

IKELY

OTIVATED TO

ARGET

NFORCEMENT

FFICERS

(Aug. 3, 2017), https://privacysos.org/wp-content/uploads/2017/

10/FBI-BlackIdentityExtremists.pdf [https://perma.cc/Y9AF-RPN2] [hereinafter BIE

REPORT].

Id.

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86 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

of that campaign

—

Muslims

—

could be just the beginning. It’s

not hard to imagine that those who advocate for women’s rights,

immigrant rights and other groups could be the subject of a fantasy

“movement” in a future F.B.I. report.

By focusing on Black and Muslim communities, victims of mounting anti-

Black racism and a protracted War on Terror, the Trump Administration ex-

panded the bounds of the surveillance state in line with its populist perspec-

tive.

The expansion of “surveillance capitalism,”

and organizing efforts

shifting traditional public forms to virtual platforms, also moved the gaze of

the state from on-the-ground to online sites.

Nonwhite targets, on and of-

fline, were disparately vulnerable to the conjoined fury of state surveillance

and white supremacist hate. The other side of “Make America Great Again”

was punishing nonwhite populations and placating the white supremacist el-

ements that formed the base of the Trump Movement.

CVE was in a standstill. But four years of Trump witnessed the furious

entr´ee of state and societal regulatory programs that marked Muslim immi-

grants, Black communities, and intersecting communities as more than just

presumptive “radicals” or “terrorists,” but racial and religious outliers

threatening the white identity of the nation.

3. Countering White Supremacist Terrorism

The Trump regime ended with a white supremacist bang. The legions of

desperate white supremacists he mobilized, through conspiracies he prof-

fered, drove the mass violence that unfolded on January 6th in Washington,

D.C.

Everybody, most notably the security state, saw it coming. However,

the FBI, the DOJ, and local law enforcement

—

the very agencies that dili-

gently policed Muslim communities and punished Black activists

—

did noth-

ing. Instead, they stood idly by despite the ample intelligence that foretold

Khaled A. Beydoun and Justin Hansford, The F.B.I.’s Dangerous Crackdown on “Black

Identity Extremists,” N.Y. T

IMES

(Nov. 15, 2017), https://www.nytimes.com/2017/11/15/opin-

ion/black-identity-extremism-fbi-trump.html [https://perma.cc/2SJZ-V7H9].

Black and Muslim communities are hardly independent, but often intersect. In fact, the

largest demographic of Muslim Americans is Black. Id at 3.

See generally S

HOSHANA

UBOFF

, T

GE OF

URVEILLANCE

APITALISM

: T

IGHT

A H

UMAN

UTURE AT THE

RONTIER OF

OWER

(2019).

See Sahar Aziz and Khaled A. Beydoun, Fear of a Black and Brown Internet: Policing

Online Activism, 100 B

OSTON

NIV

. L. R

. 1153, 1179-1184 (2020).

See Amanda Graham, Francis T. Cullen, Leah C. Butler, Alexander L. Burton, and

Velmer S. Burton, Jr., Who Wears the MAGA Hat? Racial Beliefs and Faith in Trump, 7 S

OCIUS

16 (2021), for a sociological analysis of how racism, and white supremacists’ elements, figure

into the pro-Trump political camp.

Tom Dreisbach, How Trump’s ‘will be wild!’ tweet drew rioters to the Capitol on Jan. 6,

NPR (Jul. 13, 2022), https://www.npr.org/2022/07/13/1111341161/how-trumps-will-be-wild-

tweet-drew-rioters-to-the-capitol-on-jan-6 [https://perma.cc/SVA6-4AFQ].

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2023] The Great Replacement 87

the terror to come.

These agencies, and the entire surveillance state itself,

were disarmed by the whiteness of the motley crews that surrounded the

Capitol, who then stormed it minutes before 1pm.

Upon taking office in late January, one of the Biden Administration’s

first charges was reorienting counterterrorism efforts against white suprema-

cist movements.

In line with the events of January 6th, and the culture that

precipitated it, Biden “directed his national security team to lead a 100-day

comprehensive review of U.S. Government efforts to address domestic ter-

rorism.”

The political definition, and more importantly, the religious and

racial scope of “domestic terrorism” would be far more capacious under

Biden, and unprecedented in ranking white supremacist “terrorists” as pri-

mary national security threats.

Biden’s national security commission found

that the “two most lethal elements of today’s domestic terrorism threat are

(1) racially or ethnically motivated violent extremists who advocate for the

superiority of the white race and (2) anti-government or anti-authority vio-

lent extremists, such as militia violent extremists.”

The voids were as striking as the additions. “Islamic terrorism” and

“Muslims” were wholly absent from the findings, supplanted by “white

race” supremacists and “anti-government” actors, the latter of which fixated

on the January 6th insurrectionists, who are largely white and male.

However, beyond the description of the terror subject priorities and the

familiar voids in the letter of the coming “white supremacist surveillance

program,” the structural imprint of CVE

—

the program then Vice President

Biden presided over during the Obama Administration

—

was considerable.

Biden outlined his revitalization of CVE into four pillars. The “First Pillar,”

focused on “domestic terrorism analysis and improve information sharing

throughout law enforcement,” restoring CVE’s facilitation of federal and lo-

cal law enforcement cooperation.

This pillar also focused on the interna-

tional connections to homegrown terrorism, “assess[ing] whether additional

foreign entities linked to domestic terrorism can be designated as Foreign

Terrorist Organizations or Specially Designated Global Terrorists.”

This

Carol D. Leonnig and Jacqueline Alemany, New evidence to show Trump was warned of

violence on Jan. 6, T

ASHINGTON

OST

(Oct. 12, 2022), https://www.washingtonpost.com/

nation/2022/10/12/new-evidence-show-trump-was-warned-violence-jan-6/ [https://perma.cc/

ZR5T-VBJ7].

Kat Lonsdorf et al., A timeline of how the Jan. 6 attack unfolded

—

including who said

what and when, NPR (Jun. 9, 2022), https://www.npr.org/2022/01/05/1069977469/a-timeline-

of-how-the-jan-6-attack-unfolded-including-who-said-what-and-when [https://perma.cc/

2PCC-DDT3].

National Strategy for Countering Domestic Terrorism, T

HITE

OUSE

(Jun. 15,

2021) at 5, [hereinafter National Countering Domestic Terrorism Strategy].

Id at 1.

Id.

Id at 2.

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88 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

prong of the First Pillar probed whether domestic terror subjects were in-

spired, or “radicalized,” by a foreign or transnational network of some kind,

replicating CVE’s model of tying Muslim suspects to the Islamic State of

Iraq and Syria (ISIS) or Al Qaeda.

The “Second Pillar” wholly adopted CVE’s preventative mandate and

belief that surveillance could thwart the activation of terrorists and preempt

violence. In addition to absorbing this philosophy and adapting radicaliza-

tion theory to white supremacist and anti-government actors, Biden’s surveil-

lance program also rebuilt the structure of working with community actors to

facilitate enforcement: “The U.S. Government has revamped support to

community partners who can help to prevent individuals from ever reaching

the point of committing terrorist violence.”

100

In turn, DHS and DOJ have

slowly returned to extending grants to civic, political, and other community

institutions to work collaboratively with federal and local law enforcement

to curtail terrorism.

Next, the “Third Pillar” of Biden’s white supremacist surveillance re-

gime plans on earmarking considerable financial resources to expand and

deepen it. This included over $100 million in additional funds to the DOJ,

FBI, and DHS, which included additional funds to be given to local law

enforcement agencies.

101

These funds, tied to Pillar Two, included the crea-

tion of a new “Center for Prevention Programs,” which “[would] help build

local prevention frameworks to provide communities with the tools they

need to combat terrorism and targeted violence.”

102

While the Trump Ad-

ministration muted additional funding to CVE, Biden has heavily reinvested

in federal police presence and local law enforcement attention to white su-

premacist and anti-government terrorism. Biden again revitalized the CVE

mandate of enhanced surveillance and policing in communities of interest.

Finally, “Pillar Four” highlights that “every component of the govern-

ment has a role to play in rooting out racism and bigotry.”

103

This directive,

while encouraging facially, fails to look inward. Instead of characterizing

racism and white supremacy as cultures that also exist within the state, Pillar

Four positions the government (broadly stated) as a benign actor tasked with

combating a “racial, ethnic, and religious hatred” that only exists beyond

it.

104

Pillar Four perhaps functions as an admission that raises concern for the

enforcement of surveillance moving forward, which can easily be redirected

on traditional communities of concern

—

Muslims and Black Americans

—

CVE 2011, supra note 56, at 3.

100

National Countering Domestic Terrorism Strategy, supra note 92, at 2.

101

Id at 3.

102

DHS Creates New Center for Prevention Programs and Partnerships and Additional

Efforts to Comprehensively Combat Domestic Violent Extremism, U.S. D

’

TOF

OMELAND

ECURITY

(May 11, 2021), https://www.dhs.gov/news/2021/05/11/dhs-creates-new-center-pre-

vention-programs-and-partnerships-and-additional-efforts [https://perma.cc/P2T2-P76V].

103

National Countering Domestic Terrorism Strategy, supra note 92, at 4.

104

Id.

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2023] The Great Replacement 89

the internal culture of Islamophobia, anti-Black suspicion, racism, and white

supremacy are not retrenched within the state.

105

The structure and philosophy of CVE is written all over Biden’s recon-

figuration of white supremacist surveillance, or whatever title it will eventu-

ally take on. This is more concerning, particularly for Muslim communities,

even if its focus is on white supremacy and its “strategy is grounded in good

intentions.”

106

With white supremacy firmly entrenched within government

institutions, particularly those agencies and institutions tasked with enforc-

ing counterterrorism, Biden’s white supremacist counterterrorism regime has

to navigate the “trust deficit” that exists within Muslim, Black, and histori-

cally targeted communities.

107

But more importantly, Biden’s white suprema-

cist counterterrorism regime must fight the roots of white supremacy within

the state to effectively counter it beyond.

II. W

HITE

UPREMACY

, C

OUNTERTERRORISM

AND THE

RITIQUES

ETWEEN

“Today that 37-year-old white man

with 13 years of police forcing

was set free

by eleven white men who said they were satisfied

justice had been done

and one Black Woman who said

‘They convinced me’ meaning

they had dragged her 4’10’’ black Woman’s frame

over the hot coals

of four centuries of white male approval

until she let go

the first real power she ever had

and lined her own womb with cement

to make a graveyard for our children.”

105

“The new program is supposed to work with the Homeland Security Office of Civil

Rights and Liberties to ensure rights are protected, but it has not specified any concrete safe-

guards,” which opens the door to continued threats against the civil liberties of Muslim,

Blacks, and other historically targeted groups. Harsha Panduranga, Why Biden’s Strategy for

Preventing Domestic Terrorism Could Do More Harm Than Good, T

RENNAN

ENTER FOR

USTICE

(Jun. 23, 2021), https://www.brennancenter.org/our-work/analysis-opinion/why-

bidens-strategy-preventing-domestic-terrorism-could-do-more-harm-good [https://perma.cc/

7QRC-7MLG].

106

Hina Shamsi and Hugh Handeyside, Biden’s Domestic Terrorism Strategy Entrenches

Bias and Harmful Law Enforcement Power, ACLU (Jul. 9, 2021), https://www.aclu.org/news/

national-security/bidens-domestic-terrorism-strategy-entrenches-bias-and-harmful-law-en-

forcement-power [https://perma.cc/SCS3-6J38].

107

Odette Yousef, Biden Team Promises New Approach to Extremism, But Critics See Old

Patterns, NPR 3 (Jan. 27, 2022), https://www.npr.org/2022/01/27/1075790314/biden-team-

promises-new-approach-to-extremism-but-critics-see-old-patterns [https://perma.cc/7R7P-

EMKJ].

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90 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

–Audre Lorde, 1978

108

Audre Lorde’s poignant words reference her reactions to the death of

ten-year old Clifford Glover in Queens, New York

—

a racially targeted death

at the hands of a police officer.

109

It highlights the historic lineage of vio-

lence by white supremacists that are either directly or indirectly endorsed by

the state and state institutions. Lorde’s writings not only reference state sanc-

tioned violence, but also the absence of accountability and shortcomings of

providing protection from white supremacist violence. Racial justice remains

an elusive, unattainable goal with the current approach to curbing white su-

premacist violence.

This section examines white supremacy more closely, exploring the arc

between the historic role of supremacist organizations to its current manifes-

tation. In particular, this interrogation reveals how entrenched white

supremacy has been to the fabric of socio-political life, its power in main-

taining social control over minority communities, and how white suprema-

cist violence has permeated local and federal law enforcement since the

country’s early inception. This understanding contextualizes the shortcom-

ings and risks of reframing white supremacist violent actors as simply do-

mestic terrorism, and why the current strategy falls short of achieving racial

justice.

There are both theoretical and practical concerns for why Biden’s

framework to address white supremacist violence may be inaccurate and

have deleterious consequences for historically surveilled communities. Sec-

tion 2b will follow discussing this in further detail. Not only is this definition

limited in considering the scope of the entrenchment of supremacist terror-

ism, but the proposed solution may increase harm for communities of color

and leave the problem to escalate.

White supremacy broadly refers to the idea that this type of domination

is part of a political system. Notable political philosopher Charles Mills re-

fers to white supremacy as a “particular mode of domination, with its special

norms for allocating benefits and burdens, rights and duties, its own ideol-

ogy, and an internal logic at least semi-autonomous, influencing law, cul-

ture, and consciousness . . . encompassing de facto as well as de jure white

privilege, that would refer more broadly to the European domination of the

planet for the past several hundred years that has left us with the racialized

distributions of economic, political and cultural power that we have

today.”

110

108

UDRE

ORDE

, T

OLLECTED

OEMS

UDRE

ORDE

33 (1997).

109

Jim Dweyer, A Police Shot to a Boy’s Back in Queens, Echoing Since 1973, THE NEW

YORK TIMES (Apr. 16, 2015) https://www.nytimes.com/2015/04/17/nyregion/fired-at-queens

-boy-fatal-1973-police-shot-still-reverberates.html [https://perma.cc/YN32-5EJ6].

110

Charles W. Mills, Revisionist Ontologies: Theorizing White Supremacy, S

. & E

CON

TUD

., Sept. 1994, at 105, 108.

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2023] The Great Replacement 91

The entrenchment of white supremacy within informal social norms,

law, and daily actions is important to keep in consideration when determin-

ing what strategies may help curb the violence that comes with white

supremacy. Such entrenchment also explains the ease with which a relapse

can occur, which part three will further articulate. While white supremacist

violence also includes individual actions, the large-scale impact of these ac-

tions is connected to varying organizations. Understanding the historical

manifestations of white supremacist violence helps situate the prevalence of

its modern manifestation and illuminate why Biden’s strategy falls short of

rooting out the problem.

A. White Supremacist Organizations

White supremacy is not something positioned outside of the state but

rather is intrinsic to American nation-building efforts and the state’s attempt

to socially control populations. These attempts include the social control of

indigent groups and the mass casualties targeting their displacement from

their original lands (e.g., Trail of Tears), and the brutal slave patrol system

that slave masters implemented.

111

The unwritten norms of white supremacy

have held immense power. The time period after the U.S. Civil War and the

Reconstruction of the South is the most pronounced in establishing the insti-

tutionalized reign of white supremacy within the socio-political fabric of the

United States.

1. Formative Manifestations of White Supremacy

White dominance is a permeable feature of American life utilized in

conceptualizing the various non-white groups that comprise the American

fabric. Author L. Frank Baum’s opinions on the Sioux Nation reflect this

idea; he notes, “[t]he Whites, by law of conquest, by justice of civilization,

are masters of the American continent, and the best safety of the frontier

settlements will be secured by the total annihilation of the few remaining

Indians.”

112

The very candid conversations on decimating the populations of

indigenous communities with violence as a rational route highlight how en-

trenched this notion was in the nation’s earliest era. The “best safety of the

frontier settlements” becomes one main feature of the rationale used to jus-

tify their violent strategies.

113

This logic is what permeates the national se-

curity framework justifying the extra-judicial processes that target non-white

suspects accused of violating the safety of the American public.

Moreover, examining one of the most well-known arcs of white

supremacy

—

targeting Black American bodies

—

the origin of its violence

111

ICHELLE

LEXANDER

, T

ROW

(2011).

112

L. Frank Baum, L. Frank Baum’s Editorials on the Sioux Nation, The Sitting Bull Edi-

torial, S

ATURDAY

IONEER

, Dec. 20, 1890, Retrieved December 9, 2007.

113

Id.

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92 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

traces to the first arrivals of Black Americans in 1619.

114

The arrival of the

first slave ship to the U.S. in Point Comfort, Virginia highlights the origins

of this kind of violence. Slave Codes were established by the British to jus-

tify slavery and define the type of violence permitted to control individu-

als.

115

Slave patrols, or ‘paddy rollers,’ existed in every slave-holding state

and utilized violence to ensure enslaved Africans were caught if they fled.

This entire system was disrupted by the U.S. Civil War and the Emancipa-

tion Proclamation, which installed constitutional amendments that bestowed

new rights to enslaved Americans.

2. KKK and the unwritten laws of the South

In response to this change, came the organizational origins of the most

well-known white supremacist organization, the Ku Klux Klan (“KKK”).

The KKK was conceived in 1865 after the U.S. Civil War and in response to

Reconstruction policies that aimed to provide equitable pathways to recently

freed slaves.

116

Its early members included Confederate War veterans, and

the first organizational leader, the grand wizard, was Confederate General

Nathan Bedford Forest, highlighting the early interconnections of military

institutions with the KKK.

117

By 1870, there was a KKK presence in every

southern state.

Lynchings offer a stark example of the consequences of KKK presence

and their forms of social control in the South. Lynching, known as the “un-

written law” of white supremacy, is a signature example of white suprema-

cist violence.

118

Well-known anti-lynching activist Ida B. Wells articulated

that, “[t]he lynching mania . . . manifested itself through what was known

as the Ku Klux Klan, armed bodies of masked men, who during the period

between 1865 and 1875, killed Negroes who tried to exercise the political

rights conferred on them by the United States until by such terrorism the

South regained political control.”

119

Between 1877 to 1950, the Equal Justice Initiative reports that over

3,959 Black women, men, and children were victims of lynchings at the

hands of white supremacist violence.

120

Lynchings were strategic and organ-

ized violence, reified to keep social order in absence of legal systems. As

Wells noted, it was the “cool, calculating deliberation of intelligent people

114

M.A. Robinson, Black Bodies on the Ground: Policing Disparities in the African

American Community

—

An Analysis of Newsprint from January 1, 2015, through December

31, 2015, J.

LACK

TUD

., 2017, at 552.

115

Id. at 552-53.

116

ATHLEEN

ELEW

, B

RING THE

OME

: T

HITE

OWER

OVEMENT AND

ARAMILITARY

MERICA

(2018).

117

Id. at 96.

118

Verena Erlenbusch-Anderson, Historicizing White Supremacist Terrorism with Ida B.

Wells, P

. T

HEORY

, 2022, at 287.

119

B. W

ELLS

, O

YNCHINGS

(2014).

120

QUAL

UST

. I

NITIATIVE

, L

YNCHING IN

MERICA

: C

ONFRONTING THE

EGACY OF

A-

CIAL

ERROR

40 (3d ed. 2017).

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2023] The Great Replacement 93

who openly avow that there is an ‘unwritten law’ that justifies them in put-

ting human beings to death” without respect for the legal process.

121

The ‘unwritten law’ of the South, during Reconstruction, was the reign

of white supremacy as arbiters of social control. These mechanisms ostensi-

bly reversed the advancements that Reconstruction sought to bring. Lynch-

ing functioned as a key enforcement of the unwritten law enforced by white

supremacist organizations. As Ida B. Wells notes, these unwritten norms and

laws, upheld by organizations like the KKK functioned as “unwritten laws

which kept the {B]lack man down.”

122

Social control, implemented by the

dominant group, positions white supremacy as part of the power-making ap-

paratus. Historian Katherine Belew notes that, “[b]ecause white supremacy

undergirded state power throughout U.S. history, vigilantes most often

served the white power structure.”

123

While not officially part of state institutions, the prevalence and en-

trenched support for white supremacist ideology permitted its reign of terror

to harm Black communities across the country. It is one of the most violent

elements of the reign of Jim Crow. Although the subjugation of Black com-

munities utilized legal elements, the informal tools

—

such as lynching

—

that

permitted the reign of white supremacist violence not only complemented

but served as the bedrock of white control and the legitimacy of Jim Crow

law within the American South. This becomes important to keep in consider-

ation when thinking through the theoretical limitations of Biden’s domestic

terrorism frame. The regional entrenchment of the KKK within the Southern

fabric in the post-Civil War period has impacts to this day. Its dismantling

may provide obstacles for present-day law enforcement, where local agen-

cies continue to have such influences seep into their agencies.

3. Institutional Entrenchment of White Supremacy

The KKK’s tentacles moved beyond reinforcing a subjugated social or-

der in the South. In the West, historian Kevin Waite documents the violence

that the KKK inflicted upon Asian Americans.

124

The largest mass lynching

occurred toward Chinese immigrants in Los Angeles.

125

On October 24,

1871, nineteen Chinese immigrants were tortured and subsequently hung

while white L.A. residents watched and cheered.

126

Stories of church-burn-

121

Ida B. Wells, Lynch Law in America (Jan. 1900), in T

IGHT OF

RUTH

: W

RITINGS OF

NTI

-L

YNCHING

RUSADER

122

ELLS

, supra note 119, at 214.

123

ELEW

, supra note 116, at 106.

124

EVIN

AITE

, W

EST OF

LAVERY

: T

OUTHERN

REAM OF A

RANSCONTINENTAL

MPIRE

(2021).

125

COTT

ESCH

, T

HINATOWN

: C

HINESE

NGELES AND THE

ASSACRE OF

1871 (2012).

126

Kevin Waite, The Bloody History of Anti-Asian Violence in the West, N

’

EO-

GRAPHIC

(May 10, 2021), https://www.nationalgeographic.com/history/article/the-bloody-his-

tory-of-anti-asian-violence-in-the-west [https://perma.cc/VB4S-8GNF].

\\jciprod01\productn\H\HLC\58-1\HLC101.txt unknown Seq: 26 17-MAR-23 14:52

94 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

ings for schools designed for Chinese children and workers are documented

in Sacramento’s Daily Union and other local papers. As Waite notes, “[a]

newly opened school for Chinese children in Nevada City, California, was

scheduled to operate strictly in the daytime and on Sundays, ‘to avoid the Ku

Klux Klan, who are burning churches, and will next attempt to destroy all

schoolbooks,’ according to a local newspaper.”

127

California was distinct in that there existed greater political freedom to

have unabashed white supremacists in political control. California Governor

Henry Haight in his inaugural address on December 5, 1867, discussed how

“[t]he aid of Africans and Asiatics would be an evil, and not a benefit.”

128

Buttressed by state support, the reign of the KKK on the West Coast brought

violence, death, and terror to the lives of Chinese immigrants and their fami-

lies; controlling the way they could move around within local California

towns and reifying state support for white supremacist violence.

On the east coast, the KKK had a resurgence in the 1920s opposing the

arrival of Catholic and Jewish immigrants. The KKK’s presence within local

communities surged with their promise to remove bootleggers and moon-

shiners.”

129

They raided homes, burned down businesses, and planted evi-

dence within Catholic immigrants’ places to hold against them. The KKK

grew subsidiaries, including KKK Youth groups and the Women of the Ku

Klux Klan. They were not relegated to the shadows but instead were part of

public American life. For example, in the fall of 1923, Youngstown, Ohio

elected an outspoken KKK member to be their mayor, with “an overwhelm-

ing majority” over five opponents.“

130

By 1925, the Southern Poverty Law

Center notes that the KKK had over 4 million members and “considerable

political power” in certain localities.

131

In the 1960s, their efforts remained strong in opposing the Civil Rights

Movement and the dismantling of segregation. The various permutations of

the KKK targeting Black Americans, immigrants, Catholics, and Jewish

Americans highlight the large scope of targets.

132

The military’s connection with white supremacist violence is also his-

torically prevalent and became evident in this process. Members of the

127

Kevin Waite, The Forgotten History of the Western Klan, T

TLANTIC

(Apr. 6,

2021), https://www.theatlantic.com/ideas/archive/2021/04/california-klans-anti-asian-crusade/

618513/ [https://perma.cc/4KD9-V254].

128

Henry Haight, C

ALIFORNIA

IBRARY

RCHIVES

, Dec. 5, 1867.

129

T.R. P

EGRAM

, O

UNDRED

ERCENT

MERICAN

: T

EBIRTH AND

ECLINE OF THE

LUX

LAN IN THE

1920

(2011).

130

Linton Weeks, When the KKK was Mainstream, NPR (Mar. 19, 2015), https://

www.npr.org/sections/npr-history-dept/2015/03/19/390711598/when-the-ku-klux-klan-was-

mainstream [https://perma.cc/ETM4-J3LX].

131

Ku Klux Klan, S. P

OVERTY

L. C

ENTER

(2022), https://www.splcenter.org/fighting-hate/

extremist-files/ideology/ku-klux-klan [https://perma.cc/TRR9-TBSE].

132

Id.

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2023] The Great Replacement 95

armed forces were documented to have offered combat-trained personnel

and caches of weapons.

133

According to historian Katherine Belew,

After the Civil War, the Confederate veterans who formed the first

Klan terrorized both black communities and the Reconstruction-

era state. World War I veterans led second-era Klan efforts to vio-

lently ensure “all-American” racial, religious, and nationalist

power. Third-era Klansmen who had served in World War II and

Korea played key roles in the violent opposition to civil rights,

including providing explosives expertise and other skills they had

learned in the military. After each war, veterans not only joined

the Klan but also played instrumental roles in leadership, provid-

ing military training to other Klansmen, and carrying out acts of

violence.

134

The expertise and culture that they brought with them as veterans from

paramilitary groups influenced the culture of the KKK and the types of tacti-

cal violence and cache of arms the KKK had access to. It also highlighted

how entrenched white supremacy was within different military institutions.

4. Resurgence and Mainstreaming of White Supremacy

The KKK’s position as an embedded part of communities

—

social insti-

tutions with state and military support

—

provides a different context to the

desire to recognize them as a terrorist organization situated outside of state

power and control. The reality is more complex.

On one hand, white supremacist organizations went from directly di-

verging from state powers to directly antagonizing them in the 1980s. The

gathering of the Aryan Nations World Congress in 1983 was the most ex-

plicit example, where there was a direct articulation for a “white homeland”

and a declaration of war on the American state.

135

Since then, organized

white supremacy included individuals antagonistic towards the state, in addi-

tion to those in partnership with members of mainstream political parties and

organizations.

The number of white supremacist organizations surged after Barack

Obama was elected the first Black President of the United States.

136

This

brought a “whitelash,” and Obama’s ascendency into the highest political

office in the country became a recruiting talking point used to persuade new

133

ELEW

, supra note 116.

134

Id. at 20.

135

Id. at 104.

136

Vera Bergengruen & W.J. Hennigan, ‘We Are Being Eaten from Within.’ Why America

Is Losing the Battle Against White Nationalist Terrorism, T

IME

(Aug. 8, 2019, 6:02 AM),

https://time.com/5647304/white-nationalist-terrorism-united-states/ [https://perma.cc/BZJ3-

43Q3].

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96 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

members to join.

137

But the white supremacist intonations targeting Obama

were also emboldened by members of political parties and mainstream me-

dia channels. Supremacist theories like the questioning of Obama’s birthright

citizenship were advocated by then-businessman Donald J. Trump and

gained major media attention on Fox News.

In 2018, the fifty deaths from terror attacks in the United States were all

linked to right-wing organizations.

138

According to the Southern Poverty

Law Center, the number of white nationalist groups peaked in 2019 at 155

groups total.

139

However, the number has since declined.

140

At face value,

that would be optimistic news. However, the decline in number is associated

with supremacist organizations becoming mainstreamed during the Trump

Administration’s presidential term. The embedded nature of white

supremacists to political parties, campaigns, and public life is reminiscent of

the revival of the KKK in the 1920s and their active engagement in public

life.

141

The concern increases on how law enforcement agencies can target and

hold organizations accountable that are now part of the mainstream. Can the

tools utilized to socially control non-white communities be used to manage

the dominant groups, ones who are fostered with support by law enforce-

ment? There should be deep skepticism to this approach given the entrench-

ment and the lenient policies afforded white perpetrators of violence. The

terrorist designation is highly contingent on the political terrain. As noted

earlier, white supremacy violence is part of a political system. This not only

includes political parties but also members of local and federal law

enforcement.

A report from the FBI in 2006 highlights concern and caution about the

infiltration of law enforcement agencies with White Supremacists, noting

“white supremacist infiltration of law enforcement can result in other abuses

of authority and passive tolerance of racism within communities

served.”

142

Frank Meeink, a former neo-Nazi, testified before Congress in

2020, noting:

In 1991, I attended a meeting run by the White Student Union at

Temple University. This was a monthly meeting of about 15-20

members. They were college guys, so they were career minded.

137

Id.

138

Masood Farivar, In 2018, At Least 50 US Deaths From Surging Right-Wing Extremist

Attacks, V

OICE OF

MERICA

(Mar. 25, 2019, 7:13 AM), https://www.voanews.com/a/in-2018-

at-least-50-us-deaths-from-surging-right-wing-extremist-attacks/4846707.html [https://

perma.cc/K38E-JTM5].

139

White Nationalist, S. P

OVERTY

L. C

ENTER

(2022), https://www.splcenter.org/fighting-

hate/extremist-files/ideology/white-nationalist [https://perma.cc/J893-HFX2].

140

Id.

141

Weeks, supra note 130.

142

Alice Speri, Unredacted FBI Document Sheds New Light on White Supremacist Infil-

tration of Law Enforcement, T

NTERCEPT

(Sept. 20, 2020), https://theintercept.com/2020/

09/29/police-white-supremacist-infiltration-fbi/ [https://perma.cc/HZH4-YPWQ].

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2023] The Great Replacement 97

They would say to us that we need to grow out our hair, stop get-

ting tattoos, and get ready to go into the military or police. Two

people who attended that meeting became cops. That same year, I

attended a small meeting in Baltimore, run by the National Social-

ist Movement and a group called SS Action. I heard the same rhet-

oric there. They told us to join law enforcement, so that we can

give Blacks felonies. So that they wouldn’t be able to legally arm

themselves. So that they wouldn’t be able to vote.

143

Frank Meeink’s testimony brings to life the very intentional strategies

supremacist organizations have put into place to infiltrate and influence law

enforcement agencies. A 2020 report by the Brennan Center for Justice pro-

vides detailed documentation of the participation of law enforcement agents

and police officers in supremacist and far-right groups, in addition to public

documentation of racist remarks in social media platforms.

144

The FBI has also struggled with racial diversity. Seventy-four percent

of FBI employees are white, and only 4.7% of the roughly 13,500 special

agents are Black or African American.

145

Evidence from political scientists

suggests that having a more diverse police force means there are less puni-

tive and more nuanced decisions made when targeting communities of color,

which can diminish the level of bias that permeates the targeting of

marginalized communities.

146

However, the inability to build a diverse em-

ployee force leaves room for supremacists to grow while marginalized com-

munities remain on the sidelines of direct influence within federal law

enforcement.

Understanding the depth of white supremacy within the very fabric of

American political institutions, from para-military support to state supported

violence, situates the forthcoming concerns in Parts B and C of this Section.

This analysis suggests that this lens is not only narrow, but that the tools the

Biden administration has brought about will be difficult to apply to the

groups because of social and political constraints. Instead, these new tools

may then just be used to target the typical racialized subjects that counterter-

rorism policy has traditionally focused upon.

143

Hate Crimes and the Rise of White Nationalism: Hearing Before the H. Oversight and

Reform Subcommittee on Civil Rights and Civil Liberties, 116th Cong. 11 (2020) (statement of

Frank Meeink).

144

Michael German, Hidden in Plain Sight: Racism, White Supremacy, and Far-Right

Militancy in Law Enforcement, B

RENNAN

ENTER

(

Aug. 27, 2020), https://

www.brennancenter.org/our-work/research-reports/hidden-plain-sight-racism-white-

supremacy-and-far-right-militancy-law [https://perma.cc/D7RF-QA2V].

145

Jessica Schneider, FBI Faces Its Own Racial Reckoning While Leading Probes into

Police Shooting Deaths, CNN (June 10, 2021, 3:55 AM), https://www.cnn.com/2021/06/09/

politics/fbi-race-diversity-officer [https://perma.cc/RF3P-NYHU].

146

Bocar A. Ba, Dean Knox, Jonathan Mummolo, & Roman Rivera, The Role of Officer

Race and Gender in Police-Civilian Interactions in Chicago, S

CIENCE

, Feb. 12, 2021, at 700-

01.

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98 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

B. Theoretical Concerns of White Supremacy

Examining history and the present-day entrenchment of white

supremacy contextualizes the theoretical concerns for labeling white

supremacy within a myopic lens as domestic terrorism.

147

White supremacy

is far more expansive and embedded within state institutions than Biden’s

policy initiative has acknowledged.

Theoretically, some critics are concerned that this narrow framing mis-

represents the problem of white supremacy in a manner that makes it diffi-

cult to tackle on a practical level. Moreover, increasing the power of the

national security apparatus begs a larger question of whether this approach

really attains racial justice.

Traditionally, white supremacist violence was treated within the legal

lens as a hate crime. This lens pushed violence labeled as hate crimes within

the dimensions of civil and criminal law, which are perceived as less serious

than charges of terrorism. The hate crimes framework meant less harsh

sentences and that the perpetrator is perceived as having the potential to be

rehabilitated back into society, whereas terror suspects are perceived as “en-

emy combatants” with less likelihood to be rehabilitated.

148

Hate crimes are

typically treated after the fact.

149

There are limited preventative measures or

policies associated with them, and action toward the perpetrator is typically

taken after the crime is committed. Terrorism, on the other hand, is treated

with a preventative strategy, with extensive funding and profiling tactics to

pre-emptively target and identify potential perpetrators of a terrorist

attack.

150

Shifting from a hate crime legal framework to domestic terrorism,

brings more consequence to how white supremacist violence is perceived

within the law, and the type of accountability and punishment perpetrators

receive. However, the shift in defining white supremacist violence as terror-

ism has engendered concerns about whether extending the scope has delete-

rious consequences. In order to understand these concerns, it is important to

note that the roots of terrorism as a term emerge within a national security

context.

Terrorism emerged as a key legal interest in the early 1970s, primarily

in response to an awareness of an emergence of political violence. Individu-

als are perceived to be enemy combatants working against the interests of

the American state. This definition suggests a foreign policy dimension to

terrorism and reifies Part One’s overview of how synonymous terrorism be-

came with the perception of Muslims.

147

ERMAN

, supra note 144.

148

See Shirin Sinnar, Hate Crimes, Terrorism, and the Framing of White Supremacist

Violence, 110 C

. L. R

. 489, 504–37 (2022).

149

Id.

150

See Sahar Aziz & Khaled A. Beydoun, Fear of a Black and Brown Internet: Policing

Online Activism, 100 B

OSTON

NIV

. L. R

. 1153, 1179–1184 (2020).

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2023] The Great Replacement 99

1. Domestic Terrorism’s Global Reach

Shifting the approach to addressing white supremacist violence to a ter-

rorism framework has two key shortcomings. First, it creates a boundary

between ‘terrorism’ and ‘domestic terrorism.’ This distinction is problematic

because it claims that white supremacist violence is a U.S.-based problem.

As legal scholar Darin E.W. Johnson notes, “[w]hite supremacist terrorism

is a rising threat that has been overlooked by national security authorities as

a global threat, even though white supremacist terrorism now surpasses Al

Qaeda- and ISIS-associated terrorism in the scope and impact of its destruc-

tiveness in the United States. White supremacist terrorism has been viewed

exclusively as isolated homegrown domestic terror and has not been under-

stood as part of a global terror movement.”

151

Johnson points to three primary reasons there has been a limited defini-

tion of white supremacy as understood purely within a domestic politics

frame. He notes,

The failure of the general public and national security institutions

to conceptualize white extremism as a global terror threat has oc-

curred for an array of reasons, including the early twenty-first cen-

tury global focus on responding to the catastrophic September 11,

2001 (9/11) attacks and the ability of white supremacists to build a

global terror network on digital platforms under the public radar.

This terror threat has been overlooked because the global nature,

shared ideology, and digital cohesion of this movement have not

been widely understood.

152

Johnson’s analysis reiterates Part One’s discussion of the fixation of ter-

rorism as a ‘Muslim problem’ and the narrowly subscribed tunnel-vision uti-

lized to focus nearly exclusively on Muslim and Muslim-adjacent

communities.

153

The national security apparatus had a nearly singular focus

which diverted its attention from the growing movement of white suprema-

cist organizations who were not only antagonistic to the state but also build-

ing international connections.

Limited attention to the rising problem became a larger issue as digital

platforms catapulted the resurgence and popularity of supremacist ideologies

online and helped spread ideas transnationally. Active efforts have been

made by white supremacist leaders like David Duke and the Aryan Nation to

move their worldview to a global audience.

154

Extensions of this recruiting

151

See Darin E.W. Johnson, Homegrown and Global: The Rising Terror Movement, 58

OUS

. L. R

. 1059, 1059 (2021).

152

Id.

153

See Khaled A. Beydoun, Lone Wolf Terrorism: Types, Stripes and Double Standards,

112 N

. L. R

. 1213, 1213 (2018).

154

ESSIE

ANIELS

, C

YBER

ACISM

: W

HITE

UPREMACY

NLINE AND THE

TTACK

IVIL

IGHTS

, 39–56 (2009).

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100 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

are seen by individuals like Andrew Anglin, editor of the Neo-Nazi Daily

Stormer.

155

Digital media has served as an effective platform for the swift

spread of their ideologies and the strengthening of a transnational commu-

nity committed to ideas of targeting hate towards Jewish people, immigrants,

Black Americans, and other minorities.

According to a 2016 study about Twitter, American white-nationalist

movements had a 600% increase in followers since 2012, outperforming

other far-right groups like ISIS.

156

Researcher J.M. Berger found that, “The

increase was driven in part by organized social media activism, organic

growth in the adoption of social media by people interested in white nation-

alism, and, to some extent, the rise of organized trolling communities seek-

ing to flood social media platforms with negative content, regardless of

participants’ actual beliefs.”

157

Twitter became a concern after the 2019 massacre of Muslims in Christ-

church, New Zealand. The shooter, Brenton Tarrant, was inspired by su-

premacist ideology that he found online, particularly around conspiracy

theories like the Great Replacement. Tarrant specifically aimed at harming

Muslims and brutally killed 51 people at two mosques that he targeted. Evi-

dence of the influence of this ideology on his actions became clear in hind-

sight examining his twitter page.

158

Tarrant posted white supremacist

propaganda articles and a link to the 74-page manifesto he wrote prior to

implementing his deadly shootings.

159

The day of his violent attack, he live-

streamed the actions via Facebook, escalating the role of social media as a

part of white supremacist violence. In response to these killings, New Zea-

land’s Prime Minister, Jacinda Ardern, advocated that the world needs to

“take a united front on what is a global issue.”

160

Ardern became among the

first to take note of the global interlinkages of the supremacist movement

and advocated for their surveillance and nation-states to collaborate to pre-

vent the further spread of these ideologies.

With emerging crackdowns on mainstream platforms, users have turned

to additional arenas, like 4chan and 8chan to convene and disperse suprema-

cist ideas. For example, German terror group Atomwaffen is one example of

a terror group formed through an online forum that is now eighty-members

strong. They have been linked to several murders within the U.S. and have

155

James E. Hawdon, The Internet Has Become the Most Fertile Landscape for All Types

of Extremism, B

. I

NSIDER

(Aug. 21, 2017), https://www.insider.com/the-internet-has-be

come-a-fertile-landscape-for-extremism-2017-8 [https://perma.cc/S44Q-B79T].

156

J.M. B

ERGER

, G

. W

ASH

. U

NIV

. P

ROGRAM ON

XTREMISM

AZIS VS

. ISIS

WIT-

TER

: A C

OMPARATIVE

TUDY OF

HITE

ATIONALIST AND

ISIS O

NLINE

OCIAL

EDIA

ET-

WORKS

, 3, (2016), https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/downloads/

Nazis%20v.%20ISIS.pdf [https://perma.cc/4FBE-F2VJ].

157

Id.

158

Charlie Campbell, The New Zealand Attacks Show How White Supremacy Went From a

Homegrown Issue to a Global Threat, T

IME

, March 21, 2019, https://time.com/5555738/new-

zealand-shooting-white-supremacy/ [https://perma.cc/RF57-7KB5].

159

Id.

160

Id.

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2023] The Great Replacement 101

encouraged a race war.

161

Johnson contends, “[d]espite the fact that global

white supremacist terror attacks have caused more deaths than Al Qaeda-

and ISIS-associated terror attacks, the United States and the global commu-

nity have not collectively organized to address white supremacist terrorism

as a global movement. In fact, some Western state leaders do not view white

supremacist terror attacks as part of a global terror movement, and instead

view them as isolated attacks.”

162

If the terrorist frame is the prescription

Biden seeks to move forward with, a more comprehensive frame of their

attempts as a transnational and globally embedded phenomenon is required.

Moreover, domestic terrorism claims face less accountability and puni-

tive judgement than transnational terrorism. Domestic terrorism is a distinc-

tion not necessarily afforded to other U.S. citizens, such as Arab and Muslim

terror suspects that are U.S. citizens but were treated like international en-

emy combatants. This signaling suggests that while white supremacist vio-

lence has further accountability with this new policy prescription, it will be

treated with less punitive judgement than its non-white counterparts.

163

2. The Limits to Attaining Racial Justice

Domestic terrorism claims face less accountability and punitive judge-

ment than transnational terrorism. Moreover, those laws already on the

books are not enforced properly against white supremacists in the U.S. do-

mestic terrorism context. This is a distinction not necessarily afforded to

other U.S. citizens, such as Arab and Muslim terror suspects who are U.S.

citizens but whose treatment was as an international enemy combatant. This

signaling suggests that while white supremacist violence has further ac-

countability with this new policy prescription, it will be treated with less

punitive judgement than their non-white counterparts.

164

Biden’s policy to situate white supremacy as a form of domestic terror-

ism, instead of categorizing it as a global terrorism network, still protects

white supremacists from the full scope of terrorism laws. This type of pro-

tection is consistent with existing statutes that target domestic terrorism.

Civil rights advocates and experts contend that there already exists a body of

statutes that can be used to prosecute supremacist violence, but the problem

is that they have not been used to hold people fully accountable.

The DOJ and FBI have over 50 terrorism-related statutes already at

their disposal that they could use to investigate and prosecute the criminal

conduct of white supremacist violence. This couples with dozens of addi-

161

Farivar, supra note 138.

162

Johnson, supra note 151, at 1090.

163

Beydoun, supra note 153.

164

J.M. B

ERGER

, VOX-P

ETWORK OF

XCELLENCE

-R

IGHT

WITTER

ENSUS

55, (2018), https://www.voxpol.eu/download/vox-pol_publication/AltRightTwitterCensus.pdf

[https://perma.cc/2297-FDFS].

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102 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

tional federal statutes that could be used to target white supremacist vio-

lence, including organized crime, violent crime and hate crime statutes.

165

According to the Leadership Conference of Civil and Human Rights

(LCCR), a civil-rights coalition of 156 groups, “[t]he failure to confront

and hold accountable white nationalist violence is not a question of not hav-

ing appropriate tools to employ, but a failure to use those on hand. To date,

the DOJ has simply decided as a matter of policy and practice not to priori-

tize white nationalist crimes.”

166

The policies in place already would be strong enough to use if imple-

mented. However, key cases in recent memory suggest that the FBI may fall

short of labeling violence as politically motivated. For example, Dylann

Roof, the known killer who murdered nine Black parishioners at the Eman-

uel African Methodist Episcopal Church in Charleston, South Carolina was a

known white supremacist. However, FBI Director James B. Comey did not

initially label Roof as a terrorist. As such, his prosecution did not include

any terrorism charges. However, evidence did emerge that Roof’s radicaliza-

tion was influenced by the transnational terror network, yet there was not

clear public acknowledgement by authorities of this fact.

167

The dismissal of

Roof’s actions as a form of terrorism highlights how much the subjective

opinion of authorities influences how a crime is defined. Extensive terrorism

statutes existed that could have been used in Roof’s prosecution, but they

were ignored. As such, civil rights experts remain deeply skeptical that a

new wave of policies implemented by Biden would have any impact on

countering white supremacist violence, given the history of ignoring it with

prior acts of violence.

3. Deleterious Impact on Communities of Color

The extension of Biden’s policy engenders a larger shortcoming

—

the

deleterious impact that these new policies can have on communities tradi-

tionally subject to anti-terrorism policy. Civil rights advocates have ex-

pressed great concern about the extension of government institutional

powers, particularly within the realm of the national security field. As part

one details, U.S. counterterrorism has focused on non-white communities in

pernicious ways.

First, Biden’s strategy replicates the Trump administration’s method of

guiding agencies to investigate a broader category of extremism that is “ra-

cially motivated extremism.” Categorizing it as “racially motivated extrem-

165

Bergengruen & Hennigan, supra note 136.

166

EADERSHIP

ONFERENCE ON

IVIL

IGHTS

, L

ETTER TO

EMBERS OF

ONGRESS

(Jan.

19, 2021), 1, https://civilrights.org/2021/01/19/leading-civil-rights-organizations-oppose-crea-

tion-of-new-domestic-terrorism-legislation/ [https://perma.cc/SZK4-BRGT].

167

Janet Reitman, US Law Enforcement Failed to See the Threat of White Nationalism.

Now They Don’t Know How to Stop It. N.Y. T

IMES

. (Nov. 3, 2018), https://

www.nytimes.com/2018/11/03/magazine/FBI-charlottesville-white-nationalism-far-right.html

[https://perma.cc/T3CW-3WW6].

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2023] The Great Replacement 103

ism” opens the category to include actions that are not necessarily linked

with political violence, which brings greater subjectivity permitting its appli-

cation to other groups beyond white supremacists. As section three further

articulates, this means if specific contexts emerge, these same laws will be

used to target marginalized communities.

The ACLU contends that “[a] new law that criminalizes the malleable,

fraught, and politicized concept of terrorism would only expand authorities

that target Black and Brown communities and people engaged in dissent for

unjustified surveillance, investigation, and prosecution. A new, catchall

crime of domestic terrorism should be off the table.”

168

While Biden’s policy

advocates for no bias, part one’s deeper analysis on strategies like CVE im-

plemented by the Department of Homeland Security and the Department of

Justice’s subjective oversight permit racial and religious bias within their

strategies. Historically, this has meant that the focus of these types of poli-

cies increases surveillance towards Muslim and Black communities.

The expansion of government powers, even when motivated by white

supremacist violence, has been used to target communities of color. One

stark example is the Antiterrorism and Effective Death Penalty Act

(AEDPA), which was signed into law in 1996 in the wake of the anniversary

of the Oklahoma City bombings. The OKC bombings killed 168 people and

the terrorist plot, put forward by white supremacist Timothy McVeigh. As

one of the most fatal terrorist plots executed, the public reeled from the

event and Congress sought to work swiftly to prevent further events from

occurring.

AEDPA’s passage was also advocated by President Bill Clinton to serve

as a deterrent for future terrorist plots. However, the objectives of the policy

were missed, and the policy did not impact or deter white supremacists, but

rather had a disparately harmful impact on marginalized communities.

AEDPA not only reduced defendants’ access to courts but drastically dimin-

ished the federal writ of habeas corpus, which was used by federal courts as

a means to release wrongly imprisoned individuals. Given the extensive his-

tory of people of color being wrongfully convicted, AEDPA had particularly

harmful effects.

169

For example, a 2017 report from the University of Michi-

gan highlighted that while Black Americans account for 13% of the popula-

tion, “[t]hey constitute 47% of the 1,900 exonerations listed in the National

Registry of Exonerations (as of October 2016), and the great majority of

more than 1,800 additional innocent defendants who were framed and con-

168

Hina Shamsi & Hugh Handeyside, Biden’s Domestic Terrorism Strategy Entrenches

Bias and Harmful Law Enforcement Power, T

. C

. L

IBERTIES

NION

(July 9, 2021),

https://www.aclu.org/news/national-security/bidens-domestic-terrorism-strategy-entrenches-

bias-and-harmful-law-enforcement-power [https://perma.cc/6PAV-X89N].

169

See S

AMUEL

R. G

ROSS

, M

AURICE

OSSLEY

& K

LARA

TEPHENS

, N

’

EGISTRY OF

XONERATIONS

ACE AND

RONGFUL

ONVICTIONS IN THE

NITED

TATES

, ii, (2017), https:/

/repository.law.umich.edu/cgi/viewcontent.cgi?article=1121&context=Other [https://

perma.cc/N99T-73JD].

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104 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

victed of crimes in 15 large-scale police scandals and later cleared in ‘group

exonerations.’”

170

Moreover, AEDPA made it possible to subject noncitizens for auto-

matic deportation for minor offenses.

171

Finally, the policy also included a

ban on “material support” for foreign terrorist organizations. The implica-

tions upon this for Muslims were telling, as it permitted the criminalization

of Muslims based upon articulated religious views, their ideologies, and po-

tential connections to Muslim community groups. Rather than focusing on

transnational white supremacist linkages, AEDPA became a tool to further

target and racialize Muslim subjects.

AEDPA was coined by the New Yorker as, “one of the worst statues

ever passed by Congress and signed into law by a President.”

172

AEDPA’s

passage was inspired by one of the deadliest acts of white supremacist vio-

lence, but its target did not impact white supremacist groups, but rather

marginalized communities, like Black prisoners and noncitizens with minor

offenses. This is one of the policy examples that has made civil rights

professors and advocates concerned about the extension of Biden’s policy.

While framed as neutral categories, the implementation of these policies

continues to target the historically marginalized and prosecuted communi-

ties, while permitting white supremacist ideology to grow and fester.

As civil rights attorney Diala Shamas notes, “[u]ndergirding calls to

label the Capitol mob ‘terrorism’ is the misguided assumption that simply

meeting the legal definition of terrorism

—

or simply winning the argument

that White violence is also terrorism

—

will necessarily lead to conse-

quences. . . Using the right words doesn’t flip some magical switch that

forces agencies to go after those plotting harm. Instead, the decision to do so

or not is an active, ongoing choice, one that is largely determined by a com-

bination of ideology and power.” As AEDPA’s passage highlights, this ex-

tension of terrorism will not be focused just on white supremacist violence,

but rather will be used as a way to target a broad spectrum of political move-

ments, which likely increase focus on historically targeted communities.

4. Expansion of Government Powers

Intrinsic in this concern of further harm to communities of color is the

expansion of powers to the national security apparatus. A Washington Post

investigation found that,

170

Id.

171

Diala Shamas & Tarek Z. Ismail, Calling the Capitol Riot ‘Terrorism’ Will Only Hurt

Communities of Color, W

ASH

. P

OST

(January 10, 2021), https://www.washingtonpost.com/out

look/2021/01/10/capitol-invasion-terrorism-enforcement/ [https://perma.cc/62YT-F8K7].

172

Lincoln Caplan, The Destruction of Defendants’ Rights, N

ORKER

(June 21,2015),

https://www.newyorker.com/news/news-desk/the-destruction-of-defendants-rights [https://

perma.cc/PLV5-5G3Z].

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2023] The Great Replacement 105

The top-secret world the government created in response to the

terrorist attacks of September 11, 2001, has become so large, so

unwieldy and so secretive that no one knows how much money it

costs, how many people it employs, how many programs exist

within it or exactly how many agencies do the same work.

173

From the passage of AEDPA, to the 1994 Crime Bill, the 1996 Illegal Immi-

gration Reform and Immigrant Responsibility Act, and the 2001 USA PA-

TRIOT Act, the powers of the government have grown exponentially and

strengthened the national security apparatus. It also lends further financial

support and power to the cottage industry of “terrorism experts” that have

become an appendage of the national security state. According to Shirin Sin-

nar, “[t]his group’s dependency on government patronage and the field’s

limited gatekeeping, however, make their claims to expertise and indepen-

dent analysis questionable.”

174

This means that consultants within this indus-

try have financial incentives to meet the needs of security agencies. This

gives agencies like DHS additional power to designate specific groups, such

as think tanks, and consulting firms as designated experts. The cottage in-

dustry has had a harmful impact already. In a study of the cottage industry of

terrorism suspects focused on Muslims, the Center for American Progress

“reveals not a vast right-wing conspiracy behind the rise of Islamophobia in

our nation but rather a small, tightly networked group of misinformation

experts guiding an effort that reaches millions of Americans through effec-

tive advocates, media partners, and grassroots organizing. This spreading of

hate and misinformation primarily starts with five key people and their orga-

nizations, which are sustained by funding from a clutch of key founda-

tions.”

175

These individuals have testified before state legislatures and

claimed that many mosques harbor terrorists or sympathizers of terrorism.

The stronghold of a small group of “experts” to disseminate information on

terrorism with deeply Islamophobic roots shows the dangers of giving fur-

ther oversight to agencies that have a history of collaborating with these

groups: strengthening agencies’ power to dictate the political agenda of na-

tional security issues.

Biden’s approach to curbing white supremacy by extending federal

oversight stands in in stark contrast to how hate crime laws were created,

wherein civil rights advocates and community-based organizers weighed in

through congressional testimony to help determine elements of the hate

crime framework. In this instance, the broader institution and its attached

institutions are not connected to the community, and there is a minimal feed-

173

Dana Priest & William M. Arkin, A Hidden World Growing Beyond Control, W

ASH

OST

(July 19, 2010), https://www.washingtonpost.com/investigations/top-secret-america/

2010/07/19/hidden-world-growing-beyond-control-2/ [https://perma.cc/MBX5-9LU2].

174

Sinnar, supra note 148 at 546.

175

AJAHAT

, E

LIFTON

, M

ATTHEW

USS

, L

ANG

, S

COTT

EYES

, & F

AIZ

HAKIR

, T

OOTS OF THE

SLAMOPHOBIA

ETWORK IN

MERICA

(2011), https://

www.americanprogress.org/article/fear-inc/ [https://perma.cc/D8V4-EE8X].

\\jciprod01\productn\H\HLC\58-1\HLC101.txt unknown Seq: 38 17-MAR-23 14:52

106 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

back loop in relation, which reifies their power and diminishes their account-

ability to not mismanage their power and use it to target racialized

subjects.

176

The very institutions that white supremacist organizations have

permeated are being commissioned to serve as the primary institutions to

hold white supremacy accountable.

C. Practical Concerns of Defining White Supremacy

There are also practical implications and constraints to Biden’s policy

that ought to be considered. Not only does the extension engender new con-

cerns by civil rights advocates who are concerned with how these policies

might be abused after the Biden administration, but it also offers social and

political constraints. Kimberl´e Crenshaw argues that “a society once ex-

pressly organized around white supremacist principles does not cease to be a

white supremacist society simply by formally rejecting those principles. The

society remains white supremacist in its maintenance of the actual distribu-

tion of goods and resources, status, and prestige.“

177

In many ways, Cren-

shaw’s words highlight how the goods and resources, the practical elements,

maintain supremacist structures. The role of the public provides practical

and political constraints in limiting Biden’s public objective of holding white

supremacists accountable.

Laws, formal and informal (like lynching), receive potency from the

role of public opinion and support. While Biden may push for white suprem-

acist violence to be prosecuted within a terrorism frame, he will have less

support for that from the public, in relation to prosecuting someone non-

white. As our 2021 public opinion survey of Americans nationwide indi-

cated, the public is more likely to associate terrorism with Muslims and

Black Americans than whites.

178

The general public’s opinion and skepticism

of communities of color further entrenches the reality that it is more politi-

cally feasible to respond severely to security threats from marginalized com-

munities, who have the stereotypical trope of dangerous and violence

associated with them.

As high-profile cases of recent years highlight, public pressure and at-

tention may influence processes. One of the most compelling constraints is

the mainstreaming of white supremacist ideology with the rise of Donald J.

Trump as the 45th President of the United States. Regarding the ascendency

of Trump as president, Ta-Nehisi Coates writes, “his ideology is white

176

Arun Kundnani & Jeanne Theoharris, Don’t Expand the War on Terror in the Name of

Antiracism, J

ACOBIN

(November 1, 2019), https://jacobin.com/2019/11/war-on-terror-domes-

tic-terrorism-act-racism-muslims [https://perma.cc/5B9J-4Y33].

177

Kimberl´e Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitima-

tion in Antidiscrimination Law, 101 H

ARV

. L. R

. 7, 1336 n.20 (1988).

178

See Khaled A. Beydoun and Nura Sediqe, The Law of Gendered Islamophobia, 111

. L. R

. (forthcoming 2023).

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2023] The Great Replacement 107

supremacy, in all its truculent and sanctimonious power. . . To Trump, white-

ness is neither notional nor symbolic but is the very core of his power.”

179

Having a sitting U.S. president whose close advisors have known affili-

ations with far right and white supremacist organizations has made the cate-

gorization of white supremacy difficult.

180

Stephen Miller, Trump’s senior

policy advisor, is one notable example. The Southern Poverty Law Center

shared leaked emails aggregated by Hatewatch. They note, “[i]n the run-up

to the 2016 election, White House senior policy adviser Stephen Miller pro-

moted white nationalist literature, pushed racist immigration stories and ob-

sessed over the loss of Confederate symbols after Dylann Roof’s murderous

rampage.”

181

As a result, it may become difficult to label specific events as acts of

white supremacy with the full support of the public. The opinions of the

public are buttressed by the role of the media and their involvement as well.

News coverage of attacks based on the background of the perpetrator also

varies. As Shanto Iyengar’s classic analysis of news and criminality reveals,

when the perpetrator is a minority, their racial background is connected ex-

plicitly with the crime with limited conversation on their background or con-

text.

182

Conversely, when the perpetrator is from the dominant group, they

are more likely to receive a more comprehensive reporting of the factors that

influenced their actions. Moreover, a UNESCO report reveals that while per-

petrators that are Muslims are responsible for 5 to 12.4% percent of attacks,

32% of terror-related news coverage focuses on it, amplifying it three times

more than other groups.

183

This reifies the notion that, to the public, certain

communities are more culpable for committing specific types of crimes than

others. The normativity around terrorism, according to the media, is that the

perpetrator is Muslim or non-white. This is exemplified with cases like Dy-

lann Roof, where his actions were initially framed as politically motivated

instead of framed as an act of terror.

An additional political constraint is the reality that politicians with

motivations to utilize marginalized communities as scapegoats for building

public support have heavy media support to platform their opinions. For ex-

ample, Fox News prime-time host Tucker Carlson provides some of the most

explicit support for white supremacist ideologies, where he has referred to

179

Ta-Nehisi Coates, The First White President, T

. (Oct. 2017), https://www.the

atlantic.com/magazine/archive/2017/10/the-first-white-president-ta-nehisi-coates/537909/

[https://perma.cc/R57P-2N3S].

180

Michael Edison Hayden, Stephen Miller’s Affinity for White Nationalism Revealed in

Leaked Emails, S. P

OVERTY

L. C

. (November 12, 2019), https://www.splcenter.org/

hatewatch/2019/11/12/stephen-millers-affinity-white-nationalism-revealed-leaked-emails

[https://perma.cc/AH88-G9P6].

181

Id.

182

HANTO

YENGAR

, Is Anyone Responsible? How Television Frames Political Issues 43

(1991).

183

UNESCO, T

ERRORISM AND THE

EDIA

: A H

ANDBOOK FOR

OURNALISTS

, 22, (2017),

https://unesdoc.unesco.org/ark:/48223/pf0000247074 [https://perma.cc/VS52-BACT] [herein-

after UNESCO Report].

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108 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

replacement theory saying that the presence of new Americans diminishes

his power, painting immigration as a zero-sum game that threatens the state

of the dominant group in America.

184

The identity of white supremacists,

given their proximity to dominant public opinion and the mainstreaming of

supremacist discourse in recent years affords them the benefit of the doubt

and a level of protection nonwhites do not receive.

For example, cases brought to jury trial have faced difficulty, with ju-

ries giving perpetrators the full benefit of the doubt. There have been high-

profile acquittals, such as the 1988 Fort Smith trial. This case involved 14

alleged supremacists.

185

The FBI brought forward 113 witnesses and sought

to demonstrate that they had robbed banks of $4.1 million as part of a goal to

build a white Aryan nation within the country. After a few days of delibera-

tion, the jury motioned in favor of the supremacists. One juror anonymously

told reporters, “[w]e just didn’t believe the government’s witnesses.”

186

This

acquittal is consistent with other high-profile cases, such as the acquittal of

neo-Nazis and KKK members in a 1979 case in Greensboro, North Carolina,

where members were acquitted despite considerable evidence put forward.

187

Both prosecutors and FBI agents are acutely aware of the willingness of

juries to question terror-related convictions of supremacists. The ‘benefit of

the doubt’ is far more likely to be given to white perpetrators than others.

The leniency towards white defendants highlights the constraints of the court

of public opinion falling out of favor with the government’s perception of

white supremacists.

In many ways, the role of the court of public opinion, and the expansion

of federal powers, highlights the dangers of Biden’s policy. The following

section articulates three specific scenarios that show the great likelihood that

Biden’s policies will inevitably end up harming communities of color and

missing their targeted goal of mitigating the harm of white supremacist

violence.

184

Jonathan Chait, Tucker Carlson Endorses White Supremacist Theory by Name, N

ORK

AGAZINE

(Apr. 9, 2021), https://nymag.com/intelligencer/2021/04/tucker-carlson-

great-replacement-white-supremacist-immigration-fox-news-racism.html [https://perma.cc/

R23J-TTS9]

185

The defendants included Richard G. Butler, the one-time leader of the Aryan Nations

in Idaho; Robert E. Miles, former grand dragon of the Michigan Ku Klux Klan; Louis Ray

Beam of Houston, former grand dragon of the Texas Klan; Richard Scutari of New York;

Bruce Carroll Pierce of Washington State; Andrew Virgil Barnhill of Florida; Ardie McBrearty

of Arkansas; David Eden Lane of Denver, Colorado; Lambert Miller of Missouri; David

Michael McGuire of Illinois; Robert Smalley of Fort Smith; Richard Wayne Snell of

Oklahoma; William Wade, Ivan Ray Wade of Smithville, Arkansas.

186

Bill Simmons, Defendants All Acquitted in Sedition Trial, A

SSOCIATED

RESS

(Apr. 8,

1988), https://apnews.com/article/604c50e36bd020ac70be35445b12d059 [https://perma.cc/

W9Q2-UCUK]M2EH-V79S].

187

Belew, supra note 116 at 67–74, 170–83, 199–208.

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2023] The Great Replacement 109

III. S

URVEILLANCE

ELAPSE

Biden’s policies, at face value, have good intentions if utilized as he has

articulated. The ‘terrorist’ designation, however, is highly contingent on the

political context. This Section articulates potential shortcomings by identify-

ing three “surveillance relapses” surrounding the socio-political context that

can lead robust returns to fixating on Muslim populations as the primary

culprits of terrorism. We define surveillance relapse as an institutionalized

reversion toward policing Muslim communities as the focal subjects of ter-

rorism on account of deeply entrenched stereotypes within federal and local

policing agencies.

Furthermore, relapse reifies the ways that Biden’s policies can be mis-

applied for different outcomes than its original intention. One, a state-ori-

ented relapse identifies the reality that the framing around terrorism is highly

contingent on the presidential administration in office and can be abused if a

future administration enters with anti-Muslim or anti-Black views, as was

the case with the Trump administration. Second, circumstantial relapse re-

minds us of what happens when a culprit is Muslim and explores the hypo-

thetical scenario of a Muslim culprit emerging, and how the policy would be

applied if there is a Muslim-terror suspect in the future. Finally, structural

relapse builds on part two’s detailed description of embedded white

supremacy and highlights how local law enforcement’s extensive involve-

ment with the national security state has limited oversight and accountabil-

ity, which can easily lead to local abuses of the extended powers Biden has

put into place.

A. State-Oriented Relapse

One of the most compelling concerns is that extending the powers of

the national security apparatus, and its appendages, leaves extended the

powers in place that can be manipulated in ways that are hard to hold ac-

countable. While the Biden administration may be more measured in trying

to use these extended powers to focus on white supremacist terrorism, this

goal may shift with the next presidential administration. As Part I of this

article delineates, surveillance regimes are not static. Rather, they are fluid,

in line with the aims of presidential administrations. Therefore, if a Republi-

can candidate wins the 2024 presidential election, it is highly likely that a

white supremacist counter-radicalization regime will be dissolved, or materi-

ally reformed.

Biden’s policy is predicated on the assumption that presidential admin-

istrations that come after him will utilize these expanded powers responsibly

and that there is a level of neutrality that these laws would be evenly applied

to all suspects, despite their racial or ethnic background. Even before Biden’s

policy introduction, there were extensive laws in place that could be used to

target white supremacists and other perpetrators. Examining the use of

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110 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

facially neutral policies during the Trump administration highlights the po-

tential danger of a shift in presidential administrations in the future. It also

highlights how presidential administrations, like Trump’s, can utilize existing

structures to put forward their own political agendas.

This was demonstrated in the dangerous display of Trump’s stances on

immigration and the leverage he afforded his senior policy advisor Stephen

Miller to implement his hardline anti-immigration stances using existing

policies. Miller is known for being the “adviser with total authority over a

single issue that has come to define an entire Administration.”

188

In particu-

lar, Miller’s misuse of power within the Department of Homeland Security

foreshadows the potential misuse that could occur with the extension of the

policies that Biden has implemented. According to reports from former offi-

cials, the drastic changes Miller implemented required that DHS policymak-

ing processes were sidelined.

189

According to a New Yorker expose, “Miller

has cultivated lower-level officials in the department who answer directly to

him, providing information, policy updates, and data, often behind the backs

of their bosses.”

190

This misuse of DHS employees becomes even more

harmful if we consider the extended powers that are given to the national

security apparatus under Biden’s policy.

Trump’s visceral anti-immigration stances became a defining element of

his administration and highlight the ways he used his political motivation to

unfairly target specific communities. One of the key policies his administra-

tion canceled was the Deferred Action for Childhood Arrivals (DACA). Ac-

cording to the New Yorker, Miller wrote an email to a Breitbart editor in

response to DACA stating, “that expanding the ‘foreign-born share’ of the

U.S. workforce was an instance of ‘immigration’ being used ‘to replace ex-

isting demographics.’”

191

It reiterates the replacement theory ideology and

that central figures in the Trump administration not only subscribed to this

belief but also the reality that, on an issue they had a hardline stance upon,

they were able to manipulate existing policies to achieve their target.

This is particularly consequential in relation to terrorism because immi-

gration authorities are closely interlinked with the national security appara-

tus, particularly the Department of Homeland Security. In the case of

Miller’s brutish path forward, Miller intentionally targeted lower-level DHS

officials to strong-arm in order to achieve his anti-immigrant policy objec-

tives.

192

With the extended discretionary powers provided to agencies

through Biden’s new policy, we can only wonder how much more power

188

Jonathan Blitzer, How Stephen Miller Manipulates Donald Trump to Further His Immi-

gration Obsession, T

ORKER

(March 2, 2020). https://www.newyorker.com/maga-

zine/2020/03/02/how-stephen-miller-manipulates-donald-trump-to-further-his-immigration-

obsession [https://perma.cc/V4PL-9F9K].

189

Id.

190

Id.

191

Id.

192

Id.

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2023] The Great Replacement 111

Miller would have to control DHS employees if someone like him were to

enter the next presidential administration in a position of power.

With respect to CVE specifically, as articulated in Part One, the poli-

cies in place for grants made it possible for Trump to manipulate it. During

Trump’s reign, at least 85% of CVE grants included explicit language that

they are targeting minority groups, including Muslims, individuals interested

in Islam, Black Lives Matter Activists, immigrants, refugees, and LGBTQ

Americans.

193

Funding also tripled for law enforcement from $764,000 to

$2,340,000.

194

Trump’s ability to harness his power to manipulate federal

agencies and policies to implement his goals highlights the dangers of a

structural relapse, and signals how the very nature of American democ-

racy

—

and electoral politics

—

makes it part of the surveillance beast.

B. Circumstantial Relapse

What if a Muslim is the culprit? This fear looms heavy in the minds of

Muslims after every incident of mass violence, and colors the presumptions

of police agencies before an actual culprit is identified.

195

While the formal

focus of surveillance may change, racialized understandings of “terrorism”

are deeply entrenched. Particularly with federal, and even more so local, law

enforcement agencies.

The limits of the current conceptualization of Biden’s white supremacy

law will be severely tested if there is one suspect who emerges as a perpetra-

tor that is affiliated with the Muslim community. With the rise in white su-

premacist violence, while Biden’s focus has been on this specific population,

the cottage industry of Islamophobes who have profited from the surveilling

of Muslims is established and ready if there is a future attack by a Muslim.

Reviewing one of the most recent terror plots put forward by Muslim perpe-

trators highlights the ease with which Biden’s policy can be used to target

non-white individuals and Muslims specifically.

Phone calls began incessantly from the early hours for the Islamic Soci-

ety of Boston Cultural Center.

196

There had been a targeted terrorist attack at

the Boston Marathon, killing three and injuring seventeen others who lost

limbs in the process.

197

Questions emerged about whether the mosque leader-

193

Faiza Patel, Countering Violent Extremism in the Trump Era, B

RENNAN

ENTER FOR

USTICE

(June 15, 2018), https://www.brennancenter.org/our-work/research-reports/countering-

violent-extremism-trump-era [https://perma.cc/K3RR-WY4Z].

194

Id.

195

See K

HALED

A. B

EYDOUN

, A

MERICAN

SLAMOPHOBIA

: U

NDERSTANDING THE

OOTS

AND

ISE OF

EAR

8 (2018).

196

AIQA

AHMOOD ET AL

., “H

OW A MOSQUE MANAGED A CRISIS

: T

ISBCC

RESPONSE

TO THE

OSTON

ARATHON

OMBING

” 6 (2017), https://www.ispu.org/wp-content/uploads/

2017/07/RMS-ISBCC-Crisis-Management.pdf [https://perma.cc/A8RW-4VR3].

197

ONATHAN

D. G

ATES ET AL

., The Initial Response to the Boston Marathon Bombing,

260(6) Annals of Surgery 960, 960 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/

PMC5531449/ [https://perma.cc/ER73-URG5].

\\jciprod01\productn\H\HLC\58-1\HLC101.txt unknown Seq: 44 17-MAR-23 14:52

112 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

ship were aware of any suspects. In the midst of trying to find the Tsarnaev

brothers, there were many individuals racially profiled as the perpetrator,

such as a Saudi student who was injured while participating in the marathon.

The student, an innocent victim of the attack, was tackled by another by-

stander and reported as a suspect by the New York Post.

198

Moreover, Twitter

was a vital part of the search and one of the main hashtags trending after the

event was #Muslim.

199

News emerged that the attackers were two brothers: Dzhokhar Tsarnaev

and Tamerlan Tsarnaev. It was immediately revealed that they were Chechen

and Muslim, and thus, white. However, as social commentator Sarah

Kendzior noted in a compelling piece published in the wake of the attacks,

the Brothers Tsarnaev were “The wrong kind of Caucasian” because of their

Muslim identity and Chechen origins.

200

A manhunt captured the brothers,

which meant immediate attention to the mosques and Muslim institutions in

the greater Boston area. The two were eventually found, with Tamerlan

killed during the standoff and Dzhokhar apprehended shortly after. The

younger Tsarnaev brother was later tried in federal court, and sentence to the

death penalty.

201

In the aftermath of these tragic events, the climate surrounding Muslims

in Boston was heightened and palpably more nervous. One week after the

bombings, former U.S. Congressman Joe Walsh (Republican-Illinois) ap-

peared on MSNBC and expressed his feelings on Muslims, stating, “we’re at

war, and this country got a stark reminder last week again that we’re at war.

Not only should we take a pause when it comes to our immigration, we need

to begin profiling who our enemy is in this war: young Muslim men.“

202

The

discourse around Muslims, Islam, and religiously motivated violence entered

public discourse once again.

Not surprisingly, the Obama Administration named Boston one of the

three pilot cities for the federal CVE Program.

203

The decision to prioritize

Boston, in addition to Los Angeles and Minneapolis, was fueled potently by

the terror attacks committed by the Tsarnaev Brothers, and the ensuing cul-

198

Lacey Gray, Muslim Bashing in the Wake of Boston Bombing, N

ATIONAL

EO-

GRAPHIC

, (Apr. 26, 2013), [https://perma.cc/B3WV-LWT3].

199

Id.

200

Sarah Kendzior, The Wrong Kind of Caucasian, A

AZEERA

NGLISH

(Apr. 21, 2013),

https://www.aljazeera.com/opinions/2013/4/21/the-wrong-kind-of-caucasian [https://perma.cc/

S6DK-53JL].

201

Ariane de Vogue, Supreme Court upholds death sentence of Boston Marathon bomber

Dzhokhar Tsarnaev, CNN (Mar 4, 2022), https://www.cnn.com/2022/03/04/politics/tsarnaev-

supreme-court/index.html [https://perma.cc/N6T7-SYLT].

202

Richard Solash, Following Boston Attacks, Uptick in Islamophobia, Gestures of Toler-

ance, R

ADIO

REE

IBERTY

UROPE

, (Apr. 27, 2013), https://www.rferl.org/a/boston-attacks-

islamophobia-tolerance/24970144.html [https://perma.cc/C6AL-XJCQ].

203

Fact Sheet: The White House Summit on Countering Violent Extremism, O

BAMA

HITE

OUSE

(Feb. 18, 2018), https://obamawhitehouse.archives.gov/the-press-office/2015/02/18/

fact-sheet-white-house-summit-countering-violent-extremism [https://perma.cc/G8RK-

HLRE].

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2023] The Great Replacement 113

ture of suspicion toward the Boston Muslim population within federal

counterterror agencies. This highlights the pliability of circumstantial re-

lapse, particularly in relation to Muslim culprits of terror and mass violence,

which can

—

and historically has

—

spur marked state surveillance reform and

policing response.

The reality is that the full political might of the national security state

can be deployed easily to target Muslims. If an attack as egregious as the

events of January 6th were to occur with Muslims as the perpetrators, it begs

the question of how different the response would have been. Given the way

that the national security state was intentionally redesigned post 9/11 with

Muslims as forefront suspects, Biden’s policy faces a relapse and shift in

goals, similar to the AEDPA, if there is a future occurrence with a Muslim

involved. A Muslim culprit will be swiftly designated a terrorist, not only by

federal law enforcement, but by the court of public opinion and the media.

Given the public’s likelihood to be more suspicious of Muslim suspects, the

national security apparatus has more freedom to move forward to hold the

individual, and any of their alleged associates, accountable. While there is

more of a delay and limitation to holding white supremacists accountable,

we would anticipate seeing the full powers of the state at hand if this scena-

rio were to come to fruition.

C. Structural Relapse

Finally, the relapse that can occur within the law enforcement structure

is quite probable given the current state of local and federal law enforcement

relationships. We dub this “structural relapse.” Since 9/11, state and local

law enforcement agencies have transitioned into a new role, serving on the

front lines of the domestic battle against terrorism. They have essentially

taken the role of the foot soldiers for CVE programming. The federal gov-

ernment saw the participation of local and state agencies with roughly

800,000 officers nationwide as a force multiplier in battling terrorism.

204

This shift in further empowering local agencies is an arena ripe for structural

relapse, expanding profiling and surveillance of a myriad of people with

limited accountability for abusive local agency actions.

American counterterror policing is federally led but functionally decen-

tralized, which means that this initiative has created a patchwork of rules and

guidelines on how police departments gather and maintain information on

suspects. Regional rule variation and minimal oversight and accountability

remain the primary problems with implementation. This decentralized and

highly entrenched system leaves the system vulnerable to infringement on

the civil rights and civil liberties of marginalized communities. It not only

204

Michael Price, National Security and Local Police, B

RENNAN

ENTER FOR

USTICE

(Dec. 10, 2013), https://www.brennancenter.org/our-work/research-reports/national-security-

and-local-police [https://perma.cc/AAH5-FHMA].

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114 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

leads to disjointed application of Biden’s new policy rollout, but misapplica-

tions of policies to further target Black and Muslim suspects, as some local

appendages are accustomed to doing.

The extensive entrenchment of this system post 9/11 reifies this point.

The national security apparatus has curated two main initiatives, the Joint

Terrorism Task Forces (JTTFs), which are led by the FBI, and “fusion cen-

ters”, which are funded by both the DOJ and DHS. As a result, there are

approximately, 14,600 sub-federal law enforcement agencies, 78 fusion cen-

ters that are run both regionally and at the state level, and 103 JTTF’s.

205

The

breadth of these local-federal partnerships is important to emphasize because

it shows the wide-scale entrenchment of the national security apparatus in

everyday local and state level law enforcement. Of great concern is the ex-

ponential level of vulnerability this leaves communities of color at because

of the variation of rules and guidelines that emerge from this mixture of

federal and local level engagement.

Before 9/11, police departments had stronger limits and were unable to

gather information on innocent communities without reasonable suspicion.

They were only able to investigate First Amendment-protected events if a

direct link was found to a suspected crime. Post 9/11 federal policies

prompted local police departments to change rules. The Chicago PD and

NYPD, for example, eased restrictions to permit their police officers to spy

on religious or political organizations.

In addition, local law enforcement has varied forms and scopes of train-

ing that influence their level of experience and ability to engage in federal

law enforcement. Becoming a police officer, on average, requires 652 hours

of academy training.

206

Many states have considerably lower requirements.

Georgia for example, requires 408 hours of academy training to become a

police officer.

207

By comparison, Georgia requires 3,000 hours of training to

become a licensed barber.

208

The additional factor of concern is that at least

37 states allow police to begin work without training, with states like Ne-

braska allowing officers to go 12 months into work as a police officer with-

out training.

209

Limited local law enforcement training introduces great

points of vulnerability, raising questions about whether these officers are

equipped to conduct federal law enforcement because federal officers un-

dergo more extensive training for tracking suspects and information related

to terror-cases across sub-groups of individuals.

There are also inconsistent rules and procedures in place between the

different enforcement agencies, which limits the quality control possibilities

205

Id.

206

State Law Enforcement Training Requirements, The Institute For Criminal Justice

Training Reform, https://www.trainingreform.org/state-police-training-requirements [https://

perma.cc/JB7K-XAW5] (last visited Dec. 30, 2022).

207

Id.

208

Ga. Comp. R. & Regs. r. 70-2-.07.

209

State Law Enforcement Training Requirements, supra note 206.

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2023] The Great Replacement 115

and oversight. For example, for local police departments, the general over-

sight model can include the following: “(1) the review and appellate model;

(2) the investigative and quality assurance model; and (3) the evaluative and

performance-based model.”

210

Miami-Dade County has no oversight mea-

surements, for example. The NYPD and Dearborn, Michigan Police Depart-

ment only includes an investigative and quality assurance model but omits

the other two characteristics. This is particularly troubling given that Dear-

born, Michigan has one of the largest concentrations of Muslim Americans

in the country, and NYC and Miami-Dade County have sizeable Black and

immigrant communities, in addition to large Muslim communities. Their

limited oversight leaves individuals in those cities more vulnerable as a

result.

Beyond local police departments, the Brennan Center for Justice found

that, “Independent oversight of fusion centers is virtually non-existent and

compounds the risks of the decentralized form that information sharing has

taken.”

211

Moreover, they reiterate that existing oversight mechanisms for

the police are not effectively equipped to monitor intelligence activities or

accurately estimate the impact of these programs on the civil liberties of

their residents.

Of greatest concern are JTTF’s, as there is no mechanism in place to

ensure that compliance is ensured for local and state laws. The DOJ Inspec-

tor General found that the FBI did not have signed memoranda of under-

standing (MOU) with many agencies involved with the JTTF.

212

Further

investigation has found that even when an MOU exists, the language is

vague, leaving much discretion to the officer in the JTTF and great room for

variance. This further entrenches that the national security apparatus is hard

to control when it has become so large and varied with federal agencies

interacting with decentralized rules, regulations, and policies.

With greater power granted to the extensive array of local and state

agencies working with the federal government, it is hard to monitor and hold

people accountable. This is also coupled with the reality that part two reiter-

ated, that local law enforcement agencies are particularly vulnerable to being

permeated with white supremacist members and being embedded with white

nationalist notions. With the post 9/11 apparatus intentionally designed to

information share on sub-groups of Americans, Biden’s policy will not alter

that, but may further entrench these systems to focus on marginalized com-

munities. This makes it foreseeable that structural relapses can occur, from

the way fusion centers respond to how local law enforcement engages with

implementing these policies.

210

Price, supra note 204, at 29.

211

Id., at 5.

212

FFICE

NSPECTOR

., U.S. D

’

USTICE

, T

EPARTMENT

US-

TICE

’

ERRORISM

ASK

ORCES

IV (Jun. 2005), https://oig.justice.gov/reports/plus/e0507/fi-

nal.pdf [https://perma.cc/G345-GGZZ].

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116 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

ONCLUSION

“There is no flag large enough to cover the shame of

killing innocent people.”

–Howard Zinn, Terrorism Over Tripoli

213

For more than two decades, the American War on Terror oriented Mus-

lims as the embodiment of terrorism. This racialization, rooted in longstand-

ing misrepresentations of Islam and valorization of whiteness, planted the

false flag that Islam was the enemy and that national security mandated for-

eign wars and domestic crusades against Muslims. War on Terror fixation on

“Islamic terrorism” enabled white supremacist organizations and networks

to organize in the shadows before the Trump Administration galvanized

them toward horrific and bloody action, as scores of incidents in the past

several years have illustrated, including the events in Buffalo, New York.

The Tops Friendly Market Store had served as a community space for

Black possibility. The transformation of the community site from a place of

interconnections to a site mired with memories of white supremacist vio-

lence will continue to haunt the community. Civil rights advocates have ad-

vocated for a future where the possibility of equity and justice is available

for all communities. Yet, the embedded nature of white supremacy harms

this potential. Our analysis highlights the ways that the tentacles of white

supremacy remain and may increase their hold because of the way that Pres-

ident Biden’s designation of white supremacy as domestic terrorism cur-

rently stands: a designation that limits the definition of terrorism and also

increases the powers of the national security apparatus.

The institutionalization of white supremacy within the very federal and

local law enforcement agencies tasked with enforcing counter-radicalization

against white supremacy (1) derails the possibility of carrying forward such

a program; (2) will drive under-policing of such groups; (3) enables the con-

tinuance of Muslim over-policing; and (4) after a violent attack involving a

Muslim culprit, would entrench and expand Muslim community

surveillance.

Biden’s policy, while important in trying to hold white supremacist vio-

lence accountable, falls short of achieving its mission. More urgently, it

places the lives of marginalized communities at stake by increasing the

power of the national security apparatus

—

the very institution that has turned

a blind eye to using enforcement mechanisms equitably and has utilized

these tactics to further target communities of color. Moving forward, the

future of this policy remains questionable and requires more interrogation to

empirically assess how local partnerships with federal agencies will act with

these shifts and evaluating the repercussions of this policy on marginalized

communities.

213

Howard Zinn, T

INN

EADER

362 (1993).